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.