Legal Updates: What Rheumatologists Should Consider Before Signing with an ACO

Steven M. Harris, Esq.

If you are a rheumatologist who is considering signing with an Accountable Care Organization (ACO), it is important to consider the impact of ACO participation on your ability (and the ability of your colleagues in your practice) to participate in other ACOs. The physician exclusivity provisions of the Medicare ACO regulations may potentially preclude rheumatologists from participating in more than one ACO.

“Primary Care Services” Include More Than You May Think

Patient assignment and physician exclusivity to an ACO are based on “primary care services” provided to a Medicare beneficiary (e.g., patient) under a Medicare billing number linked to the Federal taxpayer identification number (TIN) of an ACO participant. However, “primary care services” are broadly defined under the ACO regulations and include any service within specified HCPCS billing codes (e.g., 99201-99215, 99304-99340, 99342-99350, G0402, G0438, G0439). Many of these HCPCS billing codes are used by both primary care physicians and specialists. For example, some of the evaluation and management (E&M) codes within the definition of “primary care services” apply to E&M services provided by both primary care physicians and rheumatologists in office, outpatient, home, and nursing facility settings.

Patient Assignment and Physician Exclusivity

The ACO regulations state that if Medicare patient assignment to an ACO is dependent upon the TIN of an ACO participant, then the participant’s TIN must be exclusive to that ACO. Further, the exclusivity standard extends to all physicians within a group practice. Thus, when a TIN is exclusive to an ACO, all physicians providing services that are billed through the group practice will be exclusive to that ACO. Alternatively, if patient assignment is not dependent upon the TIN of an ACO participant, then that ACO participant’s TIN is not required to be exclusive to a particular ACO and the physicians may participate in multiple ACOs.

For a single specialty or multispecialty group practice, the ACO exclusivity analysis will focus primarily on whether any physician in the group practice provides services that are billed under the E&M codes for office, outpatient, home, or nursing facility visits and whether the Medicare patient sees any primary care physician during the applicable time period. This patient assignment process can ensnare unsuspecting physicians due to the broad definition of primary care services under the ACO regulations that can trigger assignment and exclusivity, the lack of any minimum threshold for assignment, and the interdependence of all physicians, physician assistants, nurse practitioners, and clinical nurse specialists within a group practice. For example, a rheumatologist providing an E&M service that falls under any of the primary care service codes to a single Medicare patient can trigger patient assignment and group practice exclusivity to an ACO.

Avoiding Exclusivity: Participating in Multiple ACOs

There are affirmative steps rheumatologists and group practices can take to avoid exclusivity under the ACO regulations and enhance their ability to participate in multiple ACOs.

Billing Under Separate TINs: One way for rheumatologists to increase the probability of participating in multiple ACOs is to furnish services under a separate entity that bills under a separate TIN, rather than billing the services under the TIN associated with the group practice. One way to accomplish this separation is to provide some services under a professional services or employee leasing agreement with a hospital or other healthcare provider that bills for the services under its TIN. Other options include forming a separate entity to retain physicians and bill for their services, or allowing physicians to work part time for other healthcare entities. Another option is for a physician to enroll and bill under his or her Social Security Number.

Billing under separate TINs or under the physician’s Social Security Number is a start, but is subject to limitations and pitfalls. Arrangements using multiple TINs or a physician’s Social Security Number should be carefully structured so as to comply with contractual obligations and legal requirements. In particular, healthcare entities whose physicians split their practices between multiple entities may find it difficult to avoid the reimbursement restrictions of the antimarkup rule or to satisfy the Stark Law “group practice” definition and in-office ancillary services exception. Logistically, billing through multiple entities can complicate the administrative responsibilities for the practice’s office personnel and billing company. For example, if a rheumatologist bills under multiple TINs within a single group practice, it may be challenging for the office personnel to ensure that records and billings reflect the appropriate healthcare provider for each patient. An additional concern is that the use of multiple TINs may require written consent by third parties (e.g., payers) in order to avoid breaching contractual and fiduciary obligations.

Billing Under Different Codes: Rheumatologists should also consider whether they can appropriately bill for certain services under billing codes that are not “primary care services” as defined under the ACO regulations. For example, office visits may be billed as part of a global fee for a procedure. In many cases, however, billing under multiple codes may be limited, as it may require the group practice to forego reimbursement for part of the services performed.

Until the Centers for Medicare and Medicaid Services amends or interprets the ACO regulations to provide greater flexibility, rheumatologists will continue to run some risk by participating in multiple ACOs. In light of the legal landscape for ACOs and specialist physicians in particular, careful consideration and planning is imperative for rheumatologists seeking participation in multiple ACOs.

Steven M. Harris, Esq., is a nationally recognized health care attorney and a member of the law firm McDonald Hopkins, LLC. He may be reached at sharris@mcdonald hopkins.com.