Comments to CMS on the Medicare Shared Savings Program Proposed Rule due October 16, 2018!

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The Medicare Shared Savings Program (“MSSP”), implemented as a key reform in the journey “from volume to value” under the Affordable Care Act, began in 2012 with 59 Medicare ACOs accepted into the program. As of 2018, there are 561 MSSP ACOs throughout the country, serving over 10.5 million Medicare beneficiaries. Opinions as to whether the Medicare Shared Savings Program is achieving its stated goals of improving outcomes and reducing costs are varied, to say the least. One thing we can say with some degree of certainty is that transitioning from Fee-For-Service payments to value/outcomes-based payment models has proven a more arduous journey than many imagined at the outset.

CMS recently released a Proposed Rule suggesting significant changes to the current program, aimed at accelerating the path for providers participating in a Medicare ACO to take on risk for the cost and care of their patient populations. If you or your organization would like assistance in drafting and submitting comments to CMS regarding its proposal for consideration, please contact us.

Key changes proposed to the Medicare Shared Savings Program

CMS proposes to retire/eliminate the Track 1, Track 1+, Track 2, and Track 3 options that currently exist in the MSSP, replacing them with two new options: the BASIC Track and the ENHANCED Track. The contract term for both tracks would change from a three-year term under the current program, to a five-year term.


The BASIC Track consists of Levels A through E, representing various stages - or, a “Glide Path,” as CMS terms it - towards accepting risk. BASIC ACOs are expected to progress through these levels during the course of their five-year contract, taking on additional risk as they go.

  • Levels A and B are “upside risk” only, similar to the current Track 1 option. ACOs in these levels are rewarded for achieving their savings goals (to the tune of a 25% sharing rate), but are not on the hook for payments back to CMS if they fail to meet their targets.

  • Levels C and D take on incremental “downside risk,” and are expected to repay some amounts to CMS for missed targets. The upside sharing rate for Level C participants is 30%, while Level D participants have a 40% rate. It is worth noting that BASIC Levels A through D are considered “MIPS APMS” for purposes of reimbursement calculations under CMS’s Quality Payment Program (“QPP”).

  • Level E is the highest level of risk and reward (with a sharing rate of 50%) under the BASIC Track, emulating Track 1+ in the current MSSP. Like Track 1+, it would be considered an Advanced Alternative Payment Model (“AAPM”) under CMS’s QPP, making participants eligible for an additional bonus payment. The shared loss rate is at 30% for Levels C, D, and E, but the maximum allowable loss increases with each level.


The ENHANCED Track is the equivalent of today’s Track 3 MSSP ACO, with a maximum attainable savings rate set at 75%. The Proposed Rule would require “high revenue ACOs” - generally ACOs including a hospital/health system - to move into the ENHANCED Track after no more than one contract period in the BASIC Track, while “low revenue ACOs” - typically physician-led ACOs - would have the opportunity to continue in the program longer under lower levels of risk.

Challenges and Opportunities in the MSSP Proposed Rule

Reactions to CMS’s Proposed Rule have been mixed, with some major healthcare industry association players citing concerns about providers’ willingness and ability to take on risk in a shortened amount of time. However, the Proposed Rule also sets forth some opportunities that should increase the likelihood of success under the MSSP, including:

  • Allowing two-sided risk models to use beneficiary inducements to encourage Medicare beneficiaries to receive PCP services

  • Increasing access to telehealth services in non-rural areas for beneficiaries of ACOs that take on downside risk

  • Allowing broader access to the “SNF 3-day rule waiver,” waiving the requirement that beneficiaries have an in-patient hospital stay of no fewer than three days before becoming eligible for Medicare coverage of a stay in a Skilled Nursing Facility

  • Improving CMS’s benchmarking methodology to take into account regional differences in expenditures while still allowing for continued improvements

CMS expects to open up an application process for the new MSSP once the Rule is finalized, and anticipates a July 2019 start date for accepted applicants. Please contact us if you are considering applying and would like assistance with the process.