The American Medical Association (AMA) yesterday submitted comments to the Federal Trade Commission (FTC) and Department of Justice (DOJ) on their proposed policy regarding antitrust enforcement of Accountable Care Organizations (ACOs). In a letter, the association called on both agencies to make strategic changes to their proposed policy so physicians in all practice sizes can develop, lead, and actively participate in ACOs.
“The FTC and DOJ antitrust policy is a critical piece of the proposed rules governing ACOs, and it must lay the groundwork for the success of these new models of care,” says AMA President Cecil B. Wilson, M.D. “Forming an ACO requires significant resources for physicians, and may include major changes to their practice. If physicians cannot see a clear path to forming an ACO, these models will not achieve their full potential to increase care coordination and promote cost savings.”
The AMA has previously stated that existing antitrust rules can make becoming part of an ACO difficult for physicians, especially those in small practices. A full 78% of office-based physicians in the U.S. work in practices with nine physicians or fewer, and a majority of those are in practices of one to four physicians. Under existing antitrust enforcement policies, these physician practices are effectively prohibited from jointly contracting with private payers around necessary care improvement and coordination efforts.
“While we appreciate this first step in proposing necessary changes to antitrust rules, further clarification and modifications are necessary to ensure physicians in all practice sizes can form an ACO,” Wilson asserts. “As proposed, the FTC and DOJ policy on ACOs simply does not go far enough to level the playing field, leaving small physician practices at a disadvantage compared to hospitals and dominant insurance companies.”
In the comments, the AMA also voices support for the goals of proposed policies. Such goals include the rule of reason analysis, the establishment of a safety zone, and a 90-day expedited review process for ACOs that require an FTC/DOJ approval. However, the association also proposes that specific modifications be made to allow all physicians who wish to do so to successfully form ACOs, including raising the safety zone threshold from 30% to 40% and the mandatory review threshold from 50% to 60% percent. The letter contains a recommendation that ACOs be permitted to exceed these thresholds if they face competition in their markets.
The AMA also plans to also submit to the Centers For Medicare & Medicaid Services (CMS) comments regarding their proposed rule governing ACOs.