Elizabeth E. Hogue, Esq.
Office: 877-871-4062
Fax: 877-871-9739
E-mail: ElizabethHogue@ElizabethHogue.net
Patients who are assigned or "aligned" with physicians who participate in ACOs are not required to receive services from such physicians or from any other participants in ACOs. Patients who are aligned with physicians in ACOs still have the right to freedom of choice of all types of providers. The Centers for Medicare and Medicaid Services (CMS) emphasizes this fact in commentary to the final regulations governing ACO's as follows:
"We have also been vigilant in protecting the rights and benefits of FFS beneficiaries under traditional Medicare to maintain the same access to care and freedom of choice…"
"An ACO will not receive an assignment of those beneficiaries that choose not to receive care from ACO providers."
"We also noted that the strategies employed by an ACO to optimize care coordination should not impede the ability of a beneficiary to seek care from providers that are not participating in the ACO, or place any restrictions that are not legally required on the exchange of medical records with providers who are not part of the ACO. We proposed to prohibit the ACO from developing any policies that would restrict a beneficiary's freedom to seek care from providers and suppliers outside of the ACO."
"It is important to note that the term 'assignment' for purposes of this provision in no way implies any limits, restrictions, or diminishment of the rights of Medicare FFS beneficiaries to exercise complete freedom of choice in the physicians and other health care practitioners and suppliers from whom they receive their services. Thus, while the statute refers to the assignment of beneficiaries to an ACO, we would characterize the process more as an 'alignment' of beneficiaries with an ACO, that is, the exercise of free choice by beneficiaries in the physicians and other health care providers and suppliers from whom they receive their services is a presupposition of the Shared Saving Program."
"…the Shared Savings program is certainly not intended to be a managed care program in a new guise. One important distinction between an ACO and many MA organizations is that beneficiaries are not locked into receiving services from the ACO to which they are assigned, and may continue to seek care from any provider they choose."
"Beneficiaries who are assigned to ACOs under the Shared Savings Program remain Medicare fee-for-service beneficiaries, retaining their full freedom of choice regarding where to receive services. We therefore take this opportunity, as requested by a number of commenters, to confirm and emphasize that basic beneficiary rights are maintained under the Shared Savings Program, most especially (but not exclusively) the right to receive care from physicians and other medical practitioners of their choice outside the ACO at no penalty to the patient."
"The ACO model does not include the use of networks or any restrictions on where beneficiaries can receive care."
It remains to be seen how ACOs will work in practice, but the final regulations are quite clear that patients in ACOs retain their right to freedom of choice of providers.
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