Are You Overlooking the Ability to Use an ACO Waiver?

By: Mike Segal

I believe that many ACOs may be overlooking the ability to enter, pursuant to an ACO waiver (a “Waiver”), into certain transactions that might be beneficial for the ACO but could implicate the Stark or anti-kickback laws, or the Gainsharing CMP (collectively the “Penalties”).

Below is a summary of some of the key elements of the ACO Waiver provisions that the ACO Board and you may want to know about. On November 2, 2011, CMS issued an Interim Final Rule setting forth the Waiver Provisions and a preamble (the “Interim Waiver Rule”). It is not necessary, or even anticipated, that a request be made to CMS before moving forward where a waiver is believed to apply. The waiver is self-implementing.There are five different types of waivers (each a “Waiver”). The waiver that will most commonly apply is the “Participation Waiver.” It covers “arrangements” that occur after the ACO has entered into the Medicare Shared Savings Program (“SSP”) with CMS.

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