Physicians Need to Explore the Personal Risk of Joining ACOs

Well, 2013 is well underway and what an interesting (to say the least) year it promises to be.

Physicians will face more challenges, and be making more high-impact decisions this year than perhaps at any time in recent memory.

As I talk to physicians nationwide, many are asking about accountable care organizations (ACOs) and what they mean to their current or future insurance programs and needs.

It’s a good question - new ACO pilot projects seem to be popping up almost daily. And, even if the opportunity you may be considering is not a textbook ACO, there is a good chance that your practice will be involved in some type of vertically integrated health plan where hospitals, physicians, and ancillary providers and resources work closely together in a community or regional basis.

While I certainly hope we find ways to maintain and protect independent physicians and small groups, there is value to such emerging models and it is understandable why some physicians have joined or are considering the option.

However, as with any change, what you don’t know could hurt you. Therefore, it’s critical that physicians carefully explore what prospective opportunities may mean to every facet of their practice and professional life, including malpractice, liability and disability insurance and related risks, exposures, and costs.

For example, the spirit of an ACO is that physicians should run or be “accountable” for quality patient care. But in reality, most physicians will have little control in the daily operations of the ACO. It is often hospital systems, very large groups or other private healthcare firms that own and develop the model, and retain most management and decision-making responsibility.

Here’s where it can get tricky: Because ACOs are still so new, insurers still don’t know exactly where the new types of claims may occur. However, there are many things we do know. For example, there needs to be clear assignment of risk responsibilities and all parties need to know what is and isn’t covered. This type of information is only obtained by asking a lot of questions and paying special attention to the following critical areas:

1. Who is running the ACO and what type of coverage do they have? Is it run by a hospital group or a physician group? That’s perhaps the most critical area to examine. You don’t want to find out after a claim that you as a physician had new responsibilities you did not understand and are not covered. Similarly, you don’t want to learn that the entity managing the ACO entity did not have the right coverage.

2. Who is responsible for selecting providers - your new peers and colleagues? If the ACO management is responsible for selecting and vetting providers and if there is a subsequent claim involving improper screening or hiring, whichever party is responsible for this ACO function will be the target.

3. Who will handle contract negotiations? The ACO management will likely be charged with negotiating contracts with Medicare and Medicaid.  If there is a claim citing that poor incentives led to improper care, again, the party responsible for this ACO function will likely be held liable.

4. What happens in the case of a claim involving EHRs and patient privacy? There will be considerable data sharing within an ACO among other physicians, providers, and hospitals. Steps must be taken along every step of that process to ensure medical record security. In the event of a breach, depending on circumstances, the ACO would likely be responsible. Groups should not only address security, but also ensure that resources are in place to properly respond to a breach.

One area that may be challenging for groups and physicians relates directly to patient care. ACOs are charged with providing high quality and cost effective care. They will often provide clinical guidelines and pathways for physicians to follow. As we’ve found out from claims related to health management organizations (HMOs) in the 90s, this can lead to problems. Did the physician use independent professional judgment or guidelines and mandates?

Carriers, physicians, and ACO managers are discussing how to handle this and other situations as the model evolves. At this stage, established carriers and brokers are conducting analysis and making assumptions based on trends and examples from similar models, such as HMO programs.

Meanwhile, it is vital to ask the right questions, read contracts carefully, and have a knowledgeable insurance broker by your side to serve as a resource, answer questions, and advocate on behalf of the medical group and its physicians.

Are you considering joining or starting an ACO? Have you thought about insurance issues yet or are you more focused on some of the bigger picture issues?

For more on liability issues regarding ACOs, listen to Jeffrey Brunken's podcast interview with Physicians Practice Associate Editor Aubrey Westgate.