On April 19, 2011, the “Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program” (“Proposed Statement”) was published in the Federal Register. The public was given the opportunity to submit comments regarding the Proposed Statement by May 31, 2011.
The Proposed Statement protects Medicare-approved accountable care organizations (“ACOs”) participating in the Medicare Shared Savings Program (“MSSP”) from per seenforcement of the antitrust laws and establishes criteria for evaluating an ACO’s risk of an antitrust law challenge from the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) under a “rule of reason” analysis. Among the criteria used to evaluate an ACO’s risk of an antitrust challenge is the ACO applicant’s “market share” within each of its service lines. The market share is a measure of the share of services an ACO participant provides in its Primary Service Area (“PSA”) relative to other providers. The share of services that each ACO participant provides in its PSA – which is referred to as the participant’s “PSA share” – is the key factor that the agencies are proposing to use for determining whether an ACO will receive “Safety Zone” protection from the antitrust laws or be subject to mandatory expedited review from the agencies in order to participate in the MSSP. Consequently, most organizations that are considering forming ACOs will need to calculate the PSA shares of their participant-providers.