ACO Antitrust Issues Underscore the Need for Data

Submitted by jonpearce on Sun, 2011-07-31 19:52

A recent article in Becker's Hospital review linked to this article in the Corporate Counsel newsletter about the difficulties of complying with the ACO antitrust requirements, and the potential for disqualification from participation (with no appeal rights) for an ACO that is determined to have too much market power.  According to the draft ACO regulations, organizations having less than 30 percent market share in each "common service" will not be challenged on antitrust grounds.  Common services are defined as consisting of physician specialties, inpatient MDCs, and outpatient categories for outpatient services.  Organizations having between 35 and 50% of the market share, presumably in any common service, may elect to seek antitrust review or not, but those having more than 50% of the market must seek review.  One organization was quoted as having spent $50,000 on economists and lawyers studying this issue and estimated that they were not even half-way done.  This issue proves to be another "sleeping giant" in the ACO regulations, and provides yet another reason for obtaining comprehensive billing and claims data for all ACO participating providers and develooping a data warehouse from which structured analyses can be performed.  Claims data typically contains the zipcode of the patient along with the description of services provided (by CPT or ICD-9 code) along with the charges and number of units of service provided.  Well-designed data warehouses incorporate geographic coding features that allow summarizing data along arbitrarily-assigned boundaries and providing coded maps and other visualizations that easily allow viewing the locations of various services provided.  Properly-designed warehouses will also allow incorporation of additional market-based information to enable visualizing the market penetration of the ACO's providers as compared to other providers.  Easy and flexible access to this information will be critical to the analysis of ACO market share, and another important component of the due-diligence process of forming an ACO.