Accountable Care Organizations (ACOs), Independent Physician Associations (IPAs) and Clinically Integrated Networks (CINs) are at the forefront of the rapid value-based care revolution currently transforming healthcare, as they are, by nature, value-based care-centric entities. The complex and highly diverse value-based care payment arrangements available to these value-based care entities (“VBCEs”) are often fraught with downside financial risk, compliance-related risk, and marked by an all-too-common lack of data and methodological transparency by the insurance company payors who offer them. To derive maximum value while mitigating risk, retaining competent healthcare counsel (working in concert with data scientists and actuaries) can be critical. Frier Levitt has attorneys who are experienced in developing and structuring ACOs, IPAs and CINs, negotiating and drafting value-based contracts with payers, and successfully litigating claims against payers regarding payments owed under value-based contracts. We have worked directly with these organizations, as well as affiliates of VBCEs such as third-party data analytics firms and EHR providers.
Our experience includes shared savings arrangements (upside only, and two-sided risk arrangements), population health-based capitated payment models, and patient centered medical home agreements, among others. Because of our dual experience drafting and litigating VBCs, Frier Levitt has identified and successfully addressed certain common contract-based pitfalls often overlooked, to the payor’s benefit and to the provider’s substantial detriment, including lack of contractually-guaranteed audit rights of the data and methodologies used to calculate shared savings or patient risk scores, and an absence of meaningful appeal rights or dispute resolution procedures to address improperly calculated shared savings or patient risk scores (and associated capitated payments), among others issues.
The firm has also been struck by VBCEs’ own internal failings, in terms of drafting workable, fair and efficient corporate governance documents (which can be particularly challenging for the complex, integrated nature of VBCEs), and lack of standard operating procedures and training to avoid running afoul of often-ignored value-based care specific regulations, such as the ban on inducing the reduction in the provision of medically necessary services to increase shared savings.
How Frier Levitt Assists ACOs, IPAs and CINs
Frier Levitt can assist your entity at every stage of the value-based care contracting process. Services include but are not limited to:
- Creation of clinically integrated networks (CINs)
- Creation of accountable care organizations (ACOs) and independent physician associations (IPAs)
- Creation of Organized Delivery Systems (ODS)
- Draft, review, or redraft corporate governance documents for VBCEs
- Creation of value based arrangements that meet the requirements to qualify for the protection of the Stark Law’s VBE Exceptions and the Federal Anti-Kickback Statute’s VBE Safe Harbor
- Negotiate terms and conditions for new shared savings, bundled payment, and global capitated risk agreements with payors that contain, among other things, payor data/methodological transparency, robust provider-side auditing rights of payor data, fair and efficient dispute resolution procedures in connection with valuating shared savings/risk
- Negotiate directly with employers and other Plan Sponsors to create/tailor provider-side-favorable value-based contracts
Keeping Your Practice Compliant in Light of Value Based Care Specific Regulations and Guidance
- Draft standard operating procedures and provide compliance training to ensure a practice’s compliance with regulations prohibiting receipt of payments in exchange for the reduction or limitation of medically necessary services, when shared savings arrangements may incentivize such misconduct
- Draft standard operating procedures and provide compliance training to ensure your Practice avoids even the appearance of having engaged in risk adjustment diagnosis code “upcoding”, a growing issue that has resulted in civil and criminal prosecutions of payors and providers alike
- Evaluation of whether a practice is at “substantial financial risk” pursuant to Provider Incentive Plan regulations requiring stop-loss protection or evaluate preexisting stop-loss protection for legal sufficiency
Keeping Payors Honest
- Work with data scientists and actuaries to determine payor compliance with value-based care contract payment provisions (e.g., evaluating accuracy of payor-assigned patient risk scores in a globally capitated payment model, assessing the accuracy of a shared savings/risk determination)
- Pre-litigation dispute resolution with payors – both private and governmental – to leverage appropriate financial compensation in cases where payors underpay shared savings owed or have assessed too much shared risk against a provider
- Litigate breach of value-based care contracts against commercial carriers, Medicare Advantage Organizations, Managed Medicaid Organizations, State Medicaid Plans, and Medicare
Defending Providers in White Collar Criminal and/or Civil Investigations or Prosecutions Matters Arising Out of a Value Based Agreement
- Defend providers accused of False Claims Act violations, for example, alleged risk adjustment upcoding
- Defend providers accused of violating the Civil Monetary Penalties Law in connection with shared savings arrangement
- Defend providers sued by payors for breach of value-based care contracts
How Frier Levitt Can Help
Frier Levitt provides strategic, industry-focused legal counsel tailored to your needs. Contact our team today to learn how we can help you.
