Current through Register Vol. 46, No. 12, March 20, 2024
(a) A
Medicare-only ACO may not enter into a contract under which its shared losses may
exceed ten percent of the benchmark established under its contract with CMS
unless:
(1) Medical claims of the ACO
participants are paid by CMS on a fee-for-service basis directly to the ACO
participants and the ACO does not directly or indirectly receive, pay or transfer
any claims payments;
(2) Any shared
savings or shared losses under the two-sided model will be tabulated and
transferred in a lump sum between CMS and the ACO only at year end;
(3) In lieu of a lump sum payment from the ACO
to CMS, the ACO has an option to instead reduce future fee for service CMS
payments below the standard Medicare fee schedule until the balance due has been
extinguished;
(4) The ACO has placed
funds in an escrow account (under terms and computations specified in the
contract with CMS) equal to at least 25 percent of the potential maximum deficit
payment due from the ACO to CMS in a particular year.
(b) The application for a certificate of
authority of a Medicare-only ACO, whose shared losses may exceed ten percent of
the benchmark established under the contract with CMS, must include the following
information:
(1)
(i) A financial statement in a form prescribed
by the Commissioner in consultation with the Superintendent, sworn to under
penalty of perjury by the ACO's chief financial officer, showing the ACO's
financial condition at the close of its fiscal year, together with an opinion of
an independent certified public accountant (CPA) on the financial statement of
such health care provider.
(ii) When
reviewing the financial condition of the ACO, the CPA's certification shall
represent whether the liabilities of the ACO make adequate provision for any
additional liability that may inure to the ACO by virtue of its assumption of
risk under a financial risk transfer agreement or any similar transaction,
including but not limited to information relating to section
1003.4(o)
of this Part. The amount and adequacy of any such liability (and a description of
the procedures used by the CPA to determine such liability) shall be disclosed
and commented upon by the CPA in its certification.
(iii) In rendering the required opinion, the
CPA may take into consideration the financial position of a guaranteeing parent
corporation, provided that the terms and conditions of the guarantee have been
reviewed by the CPA and the guaranteeing parent corporation includes the
financial condition of the controlled health care provider in its consolidated
financial statement as required by this Part. In such cases, the opinion of the
CPA on the ACO's financial statement shall state to what extent, if any, the CPA
relied upon the guarantee when rendering its opinion and to what extent the CPA
reviewed the financial position of the guaranteeing parent corporation. A copy of
the consolidated financial statement of the guaranteeing parent corporation for
the same fiscal year together with an opinion of an independent CPA on the
financial statement shall be attached to the CPA's opinion on the ACO's financial
statement.
(iv) Such financial
statement and opinion shall be available for public inspection at the offices of
the Commissioner and the principal office of the ACO.
(2)
(i) An
actuarial certification that, after examining the ACO's ability to meet its
responsibilities with respect to its use of in-network capitation funds received
from (an insurer, the CMS or other government agency in regard to Medicare or
Medicaid) and the ACO's compliance with the terms and conditions of any financial
risk transfer agreement and the provisions of this Part that such contracts are
not expected to threaten the financial solvency of the ACO.
(ii) In rendering the required certification,
the actuary may take into consideration the financial position of a guaranteeing
parent corporation, provided that the terms and conditions of the guarantee have
been reviewed by the actuary and the guaranteeing parent corporation includes the
financial condition of the controlled health care provider in its consolidated
financial statement as required by this Part. In such cases, the actuary's
certification shall state to what extent, if any, the actuary relied upon the
guarantee when rendering its certification and to what extent the actuary
reviewed the financial position of the parent corporation.
(iii) The actuarial certification shall be
available for public inspection at the offices of the Commissioner and the
principal office of the ACO.
(c) A Medicare-only ACOs whose shared losses
may exceed ten percent of the benchmark established under the contract with CMS,
shall submit to the Commissioner on an annual basis, within 120 days of the close
of its fiscal year:
(1) A financial statement
meeting the same requirements specified in subdivision (b)(1) of this section;
and
(2) An actuarial certification
meeting the same requirements specified in subdivision (b)(2) of this
section.
(d) A
Medicare-only ACO, whose shared losses may exceed ten percent of the benchmark
established under the contract with CMS, and its participating providers may not
collect or attempt to collect from a patient any amounts owed to such
participating provider for covered services, but excluding any amounts owed by
the patient to the provider pursuant to the patient's subscriber contract. Such a
"hold harmless" requirement is in addition to the protections afforded to
subscribers under any applicable state or federal statute.
(e) The Commissioner may make an examination of
the affairs of the ACO as often as the Commissioner deems prudent. The focus of
the examination will be to ensure that the ACO is not subject to adverse
conditions which in the Commissioner's determination have the potential to impact
the ACO's ability to meet its responsibilities with respect to its use of
in-network capitation funds received from an insurer, CMS or other government
agency in regard to Medicare or Medicaid and the ACO's compliance with the terms
and conditions of any financial risk transfer agreement and the provisions of
this Part.
