8
COM Outlook . Winter 2014
HEALTH CARE LEGAL EAGLE
The Shift Toward Value –
Obamacare’s Significant, But
Unpublicized, Provisions
By Fred Segal, Esq.
Many of these opinions are controversial
and politically charged, so it is safe to say that
the future of the law and whether it will be
successful is uncertain. However, the portions
of Obamacare that are the most controversial
may not be the most important parts of the
law. Certain parts, which have been under the
mainstream radar, are just as important as the
most publicized provisions.
From the Affordable Care Act’s inception to
its passage, the main talking points and dissent
from politicians, pundits, and the general public
are about the mandate that certain employers
must provide, and all individuals must procure,
health insurance. October’s rocky rollout of the
health care marketplaces, where insurance can
be purchased, has thrown fuel onto the fire.
However, amidst all this controversy,
certain programs implemented by law that
are unrelated to insurance mandates have
been moving along pretty smoothly with little
fanfare from the mainstream media. These are
the provisions that were created to attempt to
slowly shift the payment structure from a fee-
for-service to more of a value-based structure.
Currently, the majority of physicians are
paid on a fee-for-service basis. For example, a
physician performs a service, and he or she is
paid for that service based on a fee schedule
of some sort. Most of the time, the physician
is paid by a third-party payer, like a private
insurance company or government program
like Medicare or Medicaid. The principle
goals of the Affordable Care Act are to compel
physicians and other health care providers to
provide better quality of care at a lower cost to
a defined patient population. Certain provi-
sions attempt to produce this result by creating
different programs that pay physicians based
on value (i.e., providing quality care at a lower
cost) as opposed to on a fee-for-service basis.
Perhaps the Affordable Care Act’s most
It appears the entire
country is engrossed
in the drama that is the
Patient Protection and
Affordable Care Act,
colloquially known as
the Affordable Care Act
or Obamacare. Congress
has been fighting over it
for years, especially the
past few months. Presi-
dent Barack Obama de-
fends it daily. On every
news medium, commen-
tators, pundits, and TV
personalities share their
opinions. Everyone from
your neighbor to your
mailman has something
to say on the topic.
Fred Segal is a health law attorney
in the Miami office of the law firm
Broad and Cassel and is a graduate
of NSU’s Shepard Broad Law Center.
important and significant provision related to
value-based payments is the creation of the
Medicare Shared Savings Program (MSSP),
which allows for the formation of Account-
able Care Organizations to participate in the
MSSP. The Centers for Medicare and Medcaid
Services (CMS) defines Accountable Care Or-
ganizations (or ACOs) as “groups of doctors,
hospitals, and other health care providers, who
come together voluntarily to give coordinated
high-quality care to their Medicare patients.”
By
come together
, however, the CMS does
not mean form a group practice where physi-
cians become partners and share in profits. In-
stead, competing physician groups, and some-
times hospitals, will join an organization with
the goals of bringing
value
, which is providing
high-quality care to patients at a reduced over-
all cost. Accomplishing this objective requires
the ACO’s members to work more as a team,
create and share meaningful data, and focus
heavily on wellness. Even though the physi-
cians will remain competitors, the MSSP will
provide the ACO with the money saved from
providing patients with value. The members of
the ACO share in the savings.
The MSSP commenced in 2012 and, as
of now, there are currently more than 200
ACOs participating in the program. This is
just a small portion of the government’s push
toward value-based (i.e., high-quality care at
a low cost) payment systems. The Affordable
Care Act has implemented other programs
and projects that promote value-based pay-
ment systems. The trend toward value-based
payments will withstand any potential appeal
or attempt to defund the Affordable Care Act.
Thus, while Obamacare’s insurance mandates
receive most of the publicity, the act’s imple-
mentation of programs promoting value (such
as the Medicare Shared Savings Program) may
be the most significant provision of the law.
