Guidance for Public Comments on ACO Proposed Rule

April 6, 2011, 4:14 PM

As previously promised, this post will provide guidance for interested parties to comment on the ACO proposed rule as well as the respective other documents issued simultaneously with the proposed rule.

The Centers for Medicare & Medicaid Services (CMS) is seeking public comment on nearly all of the substantive provisions of the ACO proposed rule issued on March 31, 2011 and published on April 7, 2011. The deadline for submitting comments is 5:00PM on June 6, 2011. Comments must refer to file code CMS-1345-P. Comments may be submitted electronically to http://www.regulations.gov, or by regular, express or overnight mail, or by hand courier by following the delivery instructions in the Addresses section of the ACO proposed rule.

CMS and the Department of Health and Human Services Office of Inspector General (OIG) are seeking public comment on further waiver design considerations for the Shared Savings Program and for the separate waiver authority for the Center for Medicare and Medicaid Innovation under 1115A of the Social Security Act. The deadline for submitting comments is 5:00PM on June 6, 2011. Comments must refer to file code CMS-1345-NC2. Comments may be submitted electronically to http://www.regulations.gov, or by regular, express or overnight mail, or by hand courier by following the delivery instructions in the Addresses section of the CMS/OIG joint notice.

The Federal Trade Commission (FTC) and the Department of Justice (DOJ) are seeking public comment on whether, and why, the guidance in the proposed FTC/DOJ Antitrust Policy Statement issued on March 31, 2011 should be changed in any respect. Additionally, the two Agencies seek public comment on whether there are other sources of data that ACO applicants could use to determine relevant primary service area shares as well as whether the requirements to obtain an expedited antitrust review present an undue burden on ACO applicants. The deadline for submitting comments is May 31, 2011. Comments may be submitted electronically to https://ftcpublic.commentworks.com/ftc/acoenforcementpolicy, or by mail by following the delivery instructions in the Request for Comments section of the FTC/DOJ Antitrust Policy Statement. Comments should state Proposed Statement of Antitrust Enforcement Policy Regarding ACOs Participating in the Medicare Shared Savings Program, Matter V100017 in the text and, if filed by mail, on the envelope.

The Internal Revenue Service (IRS) is seeking public comments regarding the need for guidance on participation by tax-exempt organizations in the Shared Savings Program. Specifically, the IRS requests comments regarding how a tax-exempt organizations participation through an ACO furthers or is substantially related to an exempt purpose. The deadline for submitting comments is May 31, 2011. Comments should include Notice 2011-20 in the subject line. Comments may be submitted electronically to notice.comments@irscounsel.treas.gov, or by mail or hand delivery by following the instructions in the Request for Public Comment section of the IRS notice.

We hope that this information will aid in submitting public comments on these various documents. Please stay tuned as we will be breaking down the ACO proposed rule over the next several weeks to provide guidance and analysis of how the proposed rule would operate if adopted in final form and how interested providers and provider organizations can get involved with the Shared Savings Program through the creation of, and/or participation in, an ACO. --Christopher L. McLean