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The exclusivity restrictions of the Medicare Shared Savings Program pose challenges for physician practices that employ nurse practitioners, physician assistants or certified nurse specialists [1] and desire to participate in multiple accountable care organizations. Alternatives are available to avoid ACO exclusivity but often require careful planning. This Alert describes ACO exclusivity principles with particular focus on implications and workarounds for group practices that employ nonphysician practitioners.   
 
ACO EXCLUSIVITY
 
MSSP regulations preclude a physician group practice[2] from being included as a participant in more than one ACO if the group practice submits Medicare claims for various evaluation and management (E/M) or primary care services of primary care physicians, physicians within certain specialties, or nonphysician practitioners. For background on the 2015 revisions to the ACO exclusivity restriction and the methodology for assigning Medicare beneficiaries to ACOs, see our June 9, 2015 alert “Final rule will allow more physicians to participate in multiple ACOs.”
 
Services billed under any of the following CPT or HCPCS codes are defined as “primary care services” for purposes of assigning Medicare beneficiaries to ACOs and triggering ACO exclusivity:
Although the “primary care” label would seem to suggest services under this definition are commonly associated with primary care, these codes are not unique to primary care. In fact, the E/M office and outpatient visit codes within the definition also apply to services of a wide variety of specialist physicians.
 
ACO exclusivity is triggered with respect to a group practice and its tax identification number when the group submits bills under any of its physicians with a primary specialty designation set forth in the following exclusive specialties list, or any nonphysician practitioners employed or retained by the group practice. 
Physicians whose primary specialty designation is not included in the above list are not considered in beneficiary assignment, so their services do not trigger ACO exclusivity for their physician practices. In particular, services of physicians in the following specialties (“nonexclusive” specialties) are excluded from assignment and exclusivity determinations:
 
 
Exclusivity Implications for Nonphysician Practitioners and Their Group Practices
 
ACO exclusivity presents particular challenges and potential surprises for specialty group practices. Submitting claims for common office or outpatient visits under the NPI of a nonphysician practitioner will trigger exclusivity for the entire group, even if the group focuses on nonexclusive specialties. Furthermore, there is no minimum threshold for exclusivity, so  a single nonphysician practitioner claim can trigger exclusivity for an entire group.  
 
ACO regulations allow physicians within nonexclusive specialties to perform services without affecting a group’s ability to participate in multiple ACOs. Yet, submitting claims for a nonphysician practitioner’s office visits would preclude the group from participating in multiple ACOs. For example, an office visit with a dermatologist, gastroenterologist or orthopaedic surgeon would not trigger exclusivity, but the same visit to one of the group’s nonphysician practitioners for the same condition can trigger exclusivity.
 
ACO exclusivity has the potential to blindside single specialty “super groups” of specialists who have combined their practices into a single group practice with separate divisions (sometimes referred to as “strategic business units” or “SBUs”). Physicians in separate SBUs may expect to participate in separate ACOs without realizing nonphysician practitioner office visits may prevent participation in multiple ACOs.
 
In its preamble to its 2015 revisions to the ACO regulations, CMS considered various suggestions for distinguishing between primary care and specialty services of nonphysician practitioners. Such an approach could have allowed nonphysician practitioners to furnish services in some practice settings without triggering exclusivity. CMS, however, decided not to make this distinction. CMS reasoned that most nonphysician practitioners were trained in primary care or provide services in primary care settings, and expressed concern that a special procedure for nonphysician practitioners could create barriers for their involvement in ACOs by imposing conditions that don’t apply to other types of ACO professionals. CMS also noted that nonphysician practitioner services furnished “incident to” a specialist physician would be billed under the specialist’s NPI and therefore excluded from step 1 of the assignment process.   
 
CMS preamble commentary as well as informal comments suggest it may be open to proposals for revisions to address the use of nonphysician practitioners in specialty group practices. Any changes, however, would need to overcome prior CMS objections to distinguishing between nonphysician practitioner primary care and specialty care.
 
Alternative Structures to Avoid Exclusivity
Physician practices that employ nonphysician practitioners may wish to consider several alternatives to sidestep the exclusivity restrictions and benefit from affiliation with multiple ACOs.  In particular, ACO exclusivity can be avoided through “incident to” billing,   use of separate Medicare-enrolled TINs, or ACO affiliation without appearing on ACO participant lists.
 
  • “Incident to” Billing. Nonphysician practitioner services that are billed “incident to” the services of a nonexclusive specialist physician do not trigger exclusivity, so a group may be able to avoid exclusivity by billing for its nonphysician practitioner services on an “incident to” basis under the NPI of a nonexclusive specialist. Care needs to be taken, however, to ensure that all “incident to” standards are satisfied, particularly the direct supervision requirement that the billing physician be in the office suite and immediately available while the nonphysician practitioner furnishes the services. In some practice settings it may not be practical for the physician who collaborates with a particular nonphysician practitioner to be in the office while the nonphysician practitioner is seeing patients. For example, a group may structure its schedules so that a nonphysician practitioner is available for office visits while the collaborating physician is seeing patients in a facility and thus unable to satisfy direct supervision as required for “incident to” billing. In that case, another physician who is in the office while the services are performed may be able to bill “incident to,” although this can create complications regarding accountability and the allocation of the “incident to” revenue among the group’s physicians.
  • Separate TIN. Exclusivity is applied to the TIN of an ACO participant (e.g., a group practice), and not to the NPI of an individual physician or nonphysician practitioner, so reassigning some nonphysician practitioner services to the TIN of a separate provider may in some cases avoid exclusivity. This approach may be difficult to implement in some practice settings, however, due to group practice, Stark Law and other compliance issues.  
  • ACO Affiliation as Nonparticipant. Even if the exclusivity restriction applies, a physician practice may establish ACO contractual relationships without being listed as a participant in an ACO.  CMS has recognized that a group practice and ACO can customize arrangements that would allow the group practice to affiliate with multiple ACOs and share in ACO savings without appearing on ACO participant lists, in which case the rights and obligations of the group practice and the ACO would be determined by contract.
Failure to consider the implications of nonphysician practitioners on ACO exclusivity can cause unpleasant surprises for group practices.  Physician practices that employ nonphysician practitioners and desire to participate in multiple ACOs need to take care in structuring their arrangements to either avoid triggering exclusivity or enter into an appropriate ACO relationships as a nonparticipant. 

For more information, please contact the attorney listed below.

[1] Nurse practitioners (NPs), physician assistants (PAs) and certified nurse specialists (CNSs) are referred to in this Alert as  “nonphysician practitioners.” 
[2] This Alert focuses on group practices, although the exclusivity restriction also potentially applies to other health care providers that submit claims for services of physicians or nonphysician practitioners.
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