AAFP Calls for Greater Clarity in Proposed Antitrust Statement for ACOs

The AAFP has called on two federal agencies to clarify and change certain provisions of a proposed antitrust statement on accountable care organizations, or ACOs, to help ease antitrust challenges family physicians and other primary care physicians face when trying to form ACOs.

In its May 25 response (2-page PDF; About PDFs) to a proposed antitrust statement (15-page PDF) released by the Federal Trade Commission, or FTC, and the U.S. Department of Justice, the AAFP notes that "physicians are presently at a critical disadvantage when negotiating for better pricing and payments without risking sanctions under current federal antitrust enforcement policies."

"Current regulatory barriers to physician collaboration combined with 'take it or leave it' contracts from payers often hamper the delivery of quality primary care by limiting the number of in-network primary care physicians. … We encourage efforts that enable primary care physicians to contract with all insurers on level playing fields."

The AAFP noted that it supports both legislative and regulatory efforts to allow physicians to engage in collective bargaining with insurance and managed care companies so they can be stronger patient advocates. "We also support efforts that improve the quality and efficiency of care," said the AAFP.

The Academy recently sent a comment letter to CMS in which it outlined its objections to the proposed rule on ACOs. However, in the letter to the FTC and the Justice Department, the AAFP noted that "despite our concerns with the Medicare ACO program as proposed, it is the AAFP's position that antitrust laws should not create barriers that inhibit clinical integration."

For example, currently, the FTC/Justice Department antitrust policy only applies to groups that formed after March 23, 2010 -- the date the Patient Protection and Affordable Care Act was signed into law. However, "this limitation will not assist physician groups that were already collaborating and that now wish to apply to become a Medicare ACO," said the AAFP.

In addition, the Academy pointed out that according to the proposed statement, an ACO would be assessed for potential anticompetitive behavior based on the ACO's share of services in the primary service area for each of its ACO participants. If an ACO has a high share of the primary service area, the greater the anticompetitive concerns.

According to the FTC/Justice Department proposal, examining potential anticompetitive behavior would use a "rule of reason" analysis, which is considered to be more flexible than the currently used "per se" clause. The Academy noted that it agreed with this decision. "The 'rule-of-reason' analysis is more appropriate and will allow reviewing agencies to evaluate on a case-by-case basis whether collaboration is likely to have substantial anticompetitive effects, and, if so, whether the collaboration's potential procompetitive efficiencies are likely to outweigh those effects," said the AAFP.

However, noted the Academy, the rule-of-reason analysis only applies to the three-year Medicare ACO program period. "Groups that form a successful ACO will likely wish to permanently operate in this clinically integrated manner," said the AAFP. "We urge the FTC and the (Justice Department) to think outside of the Medicare ACO time frame and apply these revised antitrust enforcement policies on a broader scale."

The AAFP said it concurs with the implicit assumption within the proposed statement that physicians and other health care providers are more likely to integrate their care delivery systems for Medicare beneficiaries through ACOs if they also can use the ACOs for commercially insured patients.

"Furthermore, we recognize the need to waive certain antitrust enforcement in order to properly test innovative payment models eventually offered through the Center for Medicare and Medicaid Innovation," said the AAFP.

The Academy also pointed out that the unique circumstances of smaller or rural practices must be taken into consideration when formulating policies that may inadvertently prevent them from participating in health care delivery reform or ACOs.