September 24, 2020

Value-based Care: An Example of How the Affordable Care Act Has Impacted Health Care

The Supreme Court is set to rule in the coming months on the constitutionality of Affordable Care Act (ACA). When I think about what would happen to the health care system if the Court does in fact invalidate the landmark law, the adage “you don’t know what you’ve got until it’s gone” comes to my mind. While I definitely believe that many people across the country know about the major health insurance coverage provisions included in the ACA (the ACA Exchanges, coverage of pre-existing conditions, Medicaid expansion, and minors staying on their parents’ plan until age 26), I don’t think people realize just how embedded ACA policies are in pretty much every health care payment policy and delivery system in the country.

I could go into depth on how the ACA has impacted each health care sector, but I’ll leave that to others-- like the Kaiser Family Foundation, which just released this comprehensive analysis. However, I do want to provide an example to illustrate how impossible it would be to try to disentangle the ACA from existing health care policies and initiatives.  

The ACA included a number of provisions that paved the way for Medicare and other payors to move away from fee-for-service toward more value-based care—and, for the purposes of illustrating my point, I’ll focus on just two. Section 3021 of the ACA created the Center for Medicare & Medicaid Innovation (CMMI), an innovation lab within the Centers for Medicare & Medicaid Services (CMS) that is testing over 20 models aimed at improving quality and reducing costs within Medicare and Medicaid. In addition, Section 3022 of the ACA established the Medicare Shared Savings Program (MSSP), a national Accountable Care Organization (ACO) program that currently includes over 500 ACOs which serve approximately 11 million Medicare beneficiaries.

These two ACA provisions alone have created entirely new health care industries, from the formation of new ACOs to the many health care practitioners, facilities, and other organizations that are either participating or supporting those who participate in CMMI models. And while the word is still out on whether the MSSP and CMMI models have really moved the needle toward value-based care, many are touting their successes. Recently, CMS Administrator Seema Verma announced that ACOs in the MSSP generated $1.2 billion in net savings to Medicare in 2019.

Further, the ACA provisions themselves have not lived in a vacuum. Many other health care laws have since passed that have used these provisions as their foundation. For example, the Medicare Access and CHIP Reauthorization Act (MACRA), enacted five years after the ACA, established the Quality Payment Program (QPP)—the major quality reporting program under Medicare. Under the QPP, health care practitioners can receive a 5 percent payment bonus if they participate in an Advanced Alternative Payment Model (APM). All but one of the Advanced APMs are being tested and run by CMMI. And what is the last Advanced APM? You guessed it—the MSSP (well, to be exact, only certain “tracks” of the MSSP)! Thus, without CMMI or the MSSP, there would be no Advanced APMs. Notably, MACRA also created the Physician-focused Payment Model Technical Advisory Committee (PTAC), which is tasked with recommending APM proposals to the Secretary of the Department of Health and Human Services (HHS) for implementation. As you may know, the PTAC fully recommended ACEP’s APM proposal, the Acute Unscheduled Care Model (AUCM) to the HHS Secretary, and the HHS Secretary in turn has called on CMMI to incorporate elements of the AUCM into APMs it is developing.

So, what happens to the MSSP and CMMI if the ACA is declared unconstitutional? How would such a decision impact the QPP and other value-based care initiatives that build off the ACA? I honestly don’t know. From a regulatory perspective, it is really complicated! Thousands of pages of regs have been written in the last ten years since the ACA was passed implementing the MSSP and certain CMMI models (not to mention the QPP regulations that are based off the ACA provisions). Just sorting through these regs would require a herculean effort. Further, how would CMS deal with all the ACOs and CMMI model participants that follow the regs and have legal contracts with the agency based on them?

These are just a few of the many operational, regulatory, and legal questions to consider—and on only two ACA provisions out of hundreds! The responsibility (which I stated above is truly impossible) would fall on CMS unless Congress intervened and reinstituted the ACA policies. All I can say is that I hope CMS is thinking about these questions now and has a solid plan and strategy in place if the Supreme Court does in fact rule against the ACA.

Until next week, this is Jeffrey saying, enjoy reading regs with your eggs!

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