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Empire Justice Comments on Accountable Care Organizations Proposed Regulations

December 1, 2014


Katherine Ceroalo
New York State Department of Health
Bureau of House Counsel, Regulatory Affairs Unit
Corning Tower, Empire State Plaza, Rm. 2438
Albany, New York 12237-0031

Re: Comments on Notice of Proposed Rulemaking -
Addition of Part 1003 and Amendment of Subpart 98-1 of Title 10 NYCRR
(Accountable Care Organizations)

Dear Ms. Ceroalo:

Thank you for the opportunity to comment on the proposed regulations adding a new Part 1003 to 10 NYCRR and amending Part 98 of 10 NYCRR regarding Accountable Care Organizations (ACOs). 

Empire Justice Center is a not-for-profit public interest law firm focusing on civil legal services for low-income individuals.  We work on a number of issues affecting low income individuals and families, including access to healthcare, Medicaid and disability rights. 

The goals of Accountable Care Organizations are to “reduce health care costs, promote effective allocation of health care resources and enhance the quality and accessibility of health care.” NY. Pub Health L § 2999-n.  Unfortunately, the proposed ACO regulations fall short of ensuring that ACOs are not only accountable for the goal of savings, but are also accountable for quality care. 

We fully endorse the detailed comments on the proposed ACO regulations submitted by Health Care for All New York and Medicaid Matters New York, coalitions of which we are members.  We write separately to emphasize that the Department of Health (the Department) needs to substantially improve upon and add to the patient protection provisions of its proposed regulations. 

The New York ACO law requires the Commissioner of Health to adopt regulations that are consistent with the Centers for Medicare & Medicaid Services’ (CMS) regulations on Medicare ACOs.  NY Pub Health L § 2999-q(1).  We urge the Department to look to the CMS regulations which are highly instructive on how to protect patient rights, and mitigate incentives that could result in ACOs sacrificing quality care and avoiding high-risk/costly patients in order to maximize savings or minimize losses. 

The CMS regulations reflect an enforceable commitment to patient protection – CMS has taken responsibility for setting quality measures and standards; and developing strong mechanisms for investigating, monitoring and enforcing adherence to the quality standards and its regulations.  The Department should make a similarly strong commitment to patient rights and protections by mirroring in its ACO regulations, those provisions of the CMS regulations that hold ACOs accountable for quality care.  Among the CMS regulations that the Department should adopt are those that will: 

  • Enhance the monitoring and enforcement portions of the Department’s regulations (see 42 CFR § 425.316);
  • Result in the Department setting measures and standards to assess quality of care provided by ACOs (see 42 CFR §§ 425.500-502) and ensuring ACOs are accountable for meeting quality benchmarks (see 42 CFR § 425.316); and
  • Improve the marketing and inducements protections (see 42 CFR § 425.304) and public reporting and transparency protections (see 42 CFR § 425. 308) of the proposed regulations; and
  • Ensure patient centeredness and engagement (see 42 CFR §425.112).

Thank you for your consideration.