The American College of Emergency Physicians sent a comment letter to Dr. Donald Berwick, Administrator of the Centers for Medicare and Medicaid Services in response to the draft Accountable Care Organization regulations published Spring 2011.  The ACEP comment letter  lists a series of concerns regarding structure, governance, start-up costs and risk sharing that would make physician-based ACOs inaccessible except to large, well-capitalized multi-specialty practices.  Further, EM practices that cover large geographic areas could possibly trigger an expensive and resource consumptive Federal Trade Commission review as a result of the anti-trust requirements created by the new regulations.  If the final regulation is not changed significantly, the pool of applicants may be quite small.   

The letter in its entirety is posted below:

December 2, 2010

Donald M. Berwick, MD, MPP, FRCP 

Administrator, Centers for Medicare & Medicaid Services Department of Health and Human Services 445-G, Hubert H. Humphrey Building 200 Independence Avenue, 

SW Washington, DC 20201

Attention: CMS-1345-NC Re: Policies and Standards for ACOs Participating with the Medicare Program

Dear Dr. Berwick:

On behalf of the American College of Emergency Physicians’ (ACEP) more than 29,000 members and the Emergency Department Practice Management Association (EDPMA) and its 83 affiliated member organizations, we appreciate the opportunity to submit preliminary comments regarding aspects of policies and standards for Accountable Care Organization (ACO) design and development.

CMS has provided various background documents and public forums over the past few months in preparation for implementing Sec. 3021 and 3022 of PPACA. The vision for primary care physicians and/or hospital-based systems developing ACOs has been well-outlined. However, any description of expectations of the roles for emergency care physicians (and other hospital- based specialists) has not been addressed. We are concerned that once ACOs, medical homes, and expanded coverage are implemented, many policy makers expect emergency visits to all but disappear. While the health reform law will greatly expand insurance coverage starting in 2014, the volume of emergency visits is showing no signs of diminishing. In states like Massachusetts where 97 percent of the population has coverage, emergency department visits continue to grow.

According to the HHS’ Centers for Disease Control and Prevention, emergency visits in 2008 grew to 124 million, the highest level ever reported, and the number of uninsured recently reported by CDC has now reached 50 million, which will undoubtedly add to the volume of already crowded emergency departments. In addition, we predict that when the estimated 16 million individuals are added to Medicaid, the volume of emergency department visits will rise again as the supply and willingness of physicians in the community to add more low paying Medicaid patients to their practices falls short of demand.ACEP/EDPMA Response to ACO Questions December 2, 2010 Page 2

We believe there is a significant, and often overlooked, role for emergency physicians in new delivery system models that will greatly contribute to improvements in quality and coordination of patient care.

We have selected three of the seven questions posed in the November 17th Federal Register notice for response today. We will have more extensive reactions and recommendations when the draft regulation is released for comment.

• What policies or standards should we consider adopting to ensure that groups of solo and small practice providers have the opportunity to actively participate in the Medicare Shared Savings Program and the ACO models tested by CMMI?

We urge CMS, FTC, and OIG to strongly consider concerns on the structure and the need to remove certain legal barriers that have been articulated to CMS by the American Medical Association, American Hospital Association, the Federation, and other provider groups.

With regard to the question above, we believe that practice size is not the only factor that CMS needs to consider in planning shared savings models. Approximately one-third of emergency physicians are hospital employees while the majority are members of practice groups of varying sizes that contract with hospitals to provide 24/7 coverage of their emergency departments.

Fifty percent of Medicare admissions come through the emergency department and the majority of those have time-sensitive conditions. Our members play a critically important role coordinating care at the front end of an episode, i.e. they conduct a medical screening examination and assess the patient’s need to be either admitted, treated and discharged, or kept in observation for several hours before a final disposition decision is made. Approximately 25 percent of US hospitals have dedicated observation units and they are generally directed by emergency physicians. If the patient requires inpatient care, the emergency physician contacts the patient’s treating physician – primary care and/or specialty – who actually admits the patient. If the patient has no physician, the decision goes to the hospitalist or other hospital medical staff member. At the end of the inpatient stay, many patients are discharged into the community or to post acute care settings with little or no coordinated follow up. And, some of these individuals return to the emergency department when their conditions worsen and they don’t know where else to go.

This is an area where emergency physicians can improve transitions between sites of care, particularly when a patient comes back to the emergency department and is re-admitted within 30 days of discharge. As electronic health records continue to expand to link community-based physicians with the emergency department and other health care providers, emergency physicians will be able to play a more integral and expanded role in care coordination. Payment policies for specialty groups like emergency physicians who have little control over who comes to the emergency department should evolve over time as the ACO infrastructure improves and participating physicians can undertake joint risk sharing.

• The Affordable Care Act requires us to develop patient-centeredness criteria for assessment of ACOs participating in the Medicare Shared Savings Program. What aspects of patient-centeredness are particularly important for us to consider and how should we evaluate them?

ACEP/EDPMA Response to ACO Questions December 2, 2010 Page 3

We believe that collaborative patient education is the most effective tool to improving quality and patient satisfaction. ACEP has long provided public education regarding when an individual should come to the emergency department, based on the now universal ‘prudent lay person standard’ that is based on the individual’s belief that he/she may have a medical emergency. Appropriate use of the emergency department requires much more than communication between the emergency physician and the patient.

It starts with the patient’s primary care provider, who is often the one who tells the patient to go 

directly from home to the emergency department for tests, especially on nights and weekends.

The ACO should provide a framework to engage all the physicians in coordinating the patient’s care and keeping the patient informed about what types of services are actually needed at the most appropriate site for that care. We envision that inclusion of collaborative clinical decisions can reduce the number of diagnostic images and foster greater consideration of alternatives to inpatient care. Patient understanding and satisfaction should improve along with the quality, safety and efficiency. A team approach is especially important for Medicare patients with chronic conditions.

Again, real time exchange between providers will require extensive investments in health information technology (IT) infrastructure to facilitate coordination using EHRs and other technology. We urge CMS to reassess the EHR incentive program as policies and standards continue to be established and the current state of health IT adoption and functionality evolves. At the same time, HCAHPS and/or other instruments can be refined to measure patient understanding and satisfaction with their overall care.

We also note that emphasis on physicians providing more extensive education, coordination, and collaboration through participation in ACOs may result in higher costs for physician services, while reducing costs of inpatient and post acute care. The current payment silos must be adjusted to recognize overall system savings so physicians are not penalized.

• In order for an ACO to share in savings under the Medicare Shared Savings Program, it must meet a quality performance standard determined by the Secretary. What quality measures should the Secretary use to determine performance in the Shared Savings Program?

The most important aspect of performance measurement for nascent ACOs is to begin with existing measures endorsed by a consensus based entity (e.g., National Quality Forum) and work with consensus groups and private payers to further standardize measures and metrics. Most physicians and other providers are responding to myriad “quality” measures, and new, ACO-specific measures make no sense at this point.

The majority of physician groups are now participating in PQRI/PQRS including emergency physicians who were early adopters, so PQRI/PQRS measures are the best source of measures for the foreseeable future. As CMS and ACOs glean experience with these new delivery models, more outcome measures should be added, while some of the more process- oriented measures should be retired.

We also recommend that as the experience is gained, measures that reduce emergency department overcrowding be considered, as well as measures encouraging communication

ACEP/EDPMA Response to ACO Questions December 2, 2010 Page 4

between hospital physicians and primary care physicians and coordination of emergency department transitions so that a loop of continuous care is created to diminish morbidity and mortality at critical transition points.

We look forward to working with CMS and other physician and hospital groups to share research and clinical guidelines that can be integrated into larger bundles of care. If you have any questions about our comments, please contact Barbara Tomar, ACEP’s Federal Affairs Director at (202) 728-0610, ext. 3017.

Sincerely,

Sandra H. Schneider, MD, FACEP Randy Pilgrim, MD, FACEP President, ACEP Chairman, Board of Directors, EDPMA