The Comments are In and They are Aligned

December 1, 2020

By Travis Broome, VP of Health Policy

The public comment period for the first changes to the Medicare Shared Savings Program closed last week. According to, 275 comments were received. This includes Aledade’s and those from the Health care Transformation Taskforce where we represent independent primary care physicians. Many other organizations such as the National Association of Accountable Care Organizations (NAACOS), the Brookings Institution, and others submitted detailed comments on the first opportunity to improve the Medicare Shared Savings Program since its inception three years ago.

We are pleased to report that every issue we were on the look out for was addressed in the proposed rule.

However, when the rule came out we were quick to note that CMS’s decision to present options for many issues, but no specific proposal would require the ACO stakeholder community to come together behind an option to a level that is difficult to achieve.

We are please to report that everyone is singing the same song on a lot of major issues. Near universal agreement that:

  • Medicare beneficiaries should have the option to choose their primary care provider
  • Two-sided risk must become more attractive if ACOs are to choose it and the proposed Track 3 is a good model
  • Acknowledging the critical role NPs, PAs and CNS play in primary care by moving them to step 1 of the assignment model
  • Getting more timely, accurate and complete data is an ongoing process that CMS should continually work to improve and never settle for yesterday’s solution
  • All ACO formulas and calculations included risk adjustment should be completely transparent (i.e. CMS should provide the code used not details on how someone could recreate the code)

CMS should finalize these policies in their proposed rule. Many commenters even gave CMS specific implementation blueprints for these ideas. For an example, the HTTF comments outline a proposed process for Medicare beneficiaries to choose their primary care provider.

Now to dig into some of the other ideas that have universal support at the concept level, but not the detail level. Everyone supports the option for a benchmark not based on the ACO provider’s historical costs, but rather based on a risk-adjusted regional benchmark. However, some commenters want this to be an individual choice that each ACO makes (i.e. choose a historical cost benchmark or regional benchmark) with no requirement to move to regional. Others believes that all ACOs should move to a regional benchmark, but they are divided between requiring a defined transition path or letting an ACO choose their transition path. We believe the regional benchmark is the future of the MSSP program and that a clearly defined transition path for all ACOs provides the most certainty to CMS, the public and to current/future ACOs.

Risk adjustment is another area where the details see a little divergence. All commenters believe that risk adjustment should be allowed to move up as well as down. However, they debate on how far should it be able to go up – limited to a national average or free floating. There is also debate on should the risk adjustment model look more like Medicare Advantage (MA), move to a true concurrent model or other alternatives. We believe that risk scores should move up, but be capped to prevent rewarding coding practices over excellent care. MSSP is a unique program with distinct differences from MA and we are wary of moves to MA simply due to CMS and provider familiarity with it.

The last area with complete conceptual agreement, but some differences in the details is the continuation of a one-sided risk option. Every comment we have read supports the continuation of one-sided risk; however, the details vary. Some commenters representing large, but specific constituencies such as NAACOS support allowing nearly any ACO to continue. Other comments from policy shops like Brookings, where two-sided risk is cherished, suggest tougher requirements such as requiring an ACO to have achieved one year of shared savings in order to continue in one-sided risk. We believe the most important aspect of the continuation of one-sided risk is the recognition that ACOs come in all sizes and forms.

We suggested three policies to encourage ACOs with large institutional partners (hospitals or health plans) to move to two-sided risk. First, require that ACOs with large institutional partners have achieved shared savings in at least one of the three years of the first contract. Second, require that ACOs with large institutional partners explain in their application for their second contract why it is not financially feasible for them to move to two-sided risk. Third, evaluate ACOs for market consolidation and require ACOs that dominate their local health care market to move to two-sided risk. These policies will prevent large institutions and dominate market players from “squatting” in one-sided risk. For other ACOs we would encourage CMS to finalize its proposed requirements for all other ACOs.

Finally, we end on one of those rare opportunities to have your cake and eat it too. ACOs are divided over whether prospective attribution or retrospective attribution is better. Some ACOs crave the certainty of the prospective attribution. Others ACOs balk at the idea that a beneficiary who didn’t receive care from them would be in the ACO or that a beneficiary who did receive care from them would not be. Both are concerned with uncertainty. Few things are more valuable than certainty

However, this is not an either/or situation. The closer the prospective attribution matches the retrospective attribution, the more certainty everyone has.

Therefore, we suggest that the path forward is to refine prospective and retrospective attribution so that the difference between the two disappears. HTTF, Brookings and Aledade included proposals that would improve attribution.

CMS proposed some great changes to the MSSP as evidenced by the quite astounding level of support for many of the changes. We encourage CMS to acknowledge the conceptual support so many policies enjoy and urge them to mine these thoughtful comments for details on how to implement these policies so that they will have the desired effect.