What are the rules for ACO's Transparency and Fiduciary Responsibilities to its Physicians?

An ACO is a legal entity structured as either a corporation, partnership, limited liability company, foundation, or any other permitted forms as allowed under the federal and state laws, and their economic bedrock and objectives are found in the Medicare Shared Savings Program (SSP).  Some very basic and pointed questions come to mind:

How does an ACO distribute its SSP savings? 

  1. The rules say that it must be in writing how the savings will be distributed, but there is nothing in the rules that says how that should be done. They have to be articulated somewhere in writing. 
  2. the plan for distribution must be registered as part of the ACO's application with the government.  
  3. Any member physician who is a part of the ACO is entitled to have a copy of those rules for distribution. 

See 42 C.F.R. Section 425.204(d) and 76 Fed. Reg. at 67,816. 

There absolutely is a Fiduciary duty on the governing board to be Transparent and to provide for a Conflict of Interest policy for the ACO

See Below the Code of Federal Regulation - 76 Fed. Reg. at 67,975, also See 42 CFR Section 425.106.  There is a Fiduciary Duty on the Part of the Governing Body, and also to have an articulated Conflict of Interest Policy that they have to follow. 

Contingency Legal Fees

There are often either contractual and/or statutory provisions that allow you to claim legal fees and costs against a health plan.  Call us, we will look into it for free for you. 

Why Health Plans Don't Pay - Common Reasons for Disputes Are:

  1. Medically Necessary Treatment -  A common area of dispute is whether a treatment was appropriate and necessary.  What is medically necessary is often defined in statute.  In the state of Florida, there is a Patient Bill of Rights, Statute Chapter 409.9131 defines that as any good or service necessary to palliate the effect of a terminal condition or to prevent, diagnose, correct or alleviate a deterioration that threatens life, causes pain, or results in illness.  However, contracts often resort to their own language that may require preauthorization for coverage, prohibit retrospective payment denial on the basis of lack of medical necessity, and set forth an expedited process for appeals. 
  2. Emergency Medical Care - the level of care is sometimes debated.  Generally, what is emergency care is determined on what is called "prudent layperson standard", such that if a reasonable person determines it to be an emergency, then it is deemed an emergency.  In emergency care, it is the coding levels that often (i.e. level 4 vs level 5 claims), get disputed. This coupled with the Emergency Medical Treatment and Active Labor Act (EMTALA), providers are required to treat patients in emergency rooms for something that could very well present itself as a life-threatening emergency, and in hindsight eventually may not turn out to be one.  
  3. Site of Service - Hospitals are often more comprehensive places of care than clinics, and are almost always more expensive.  If a medical service is provided in a more costly site of service, it is possible that the payer will dispute that.   
  4. Enrollee Verification - Another common set of disputes are those regarding the enrollee's eligibility, hence the manner of how the eligibility was verified matters.  If the medical service is listed in the contract it makes the verification process much cleaner, but if it is not it may be disputed. 

Failure to provide a Clean Claim is one of the most common defenses payers use. A standardized claim form like the CMS 1500 or the CMS 1450 (UB-04) are part of the Medicare program and they generally are broad enough that if they are complied with, it typically means that the claim was likely to be a clean claim.  Florida Statute 641.3155 also defines rules for prompt payment for Clean Claims. 

If you or your business are struggling with how far to push the issues with a health plan payer, it would help if you had a second opinion to figure out what your options are.  At Mirza Healthcare Law Partners, we can help you figure out what your options are.  Our initial case consults are free, and if we take on your case to go after the insurance company we do it on a contingency, so you don't pay any fees unless we collect. 

For more information on how you can put our team to work for you call directly by Cell/Text at 954-634-2370, or email at [email protected]

Ben Mirza is not only an attorney but was formerly a CPA, with a masters of public health.  There are over 100,000 attorneys in Florida, less than 500 of whom were ever Certified Public Accountants, and even less have the trifecta combination of law/finance/strategic healthcare background.   The benefit of this combined and layered skillset works well for clients who want an advocate to approach the issues holistically.  

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