ACO rules: Where's the beef?

I'm sorry, but I just don't get it. Last week, CMS announced proposed regulations about setting up Accountable Care Organizations. Here's the statutory background and the theory of the case, as set forth in the March 31 Medicare Fact Sheet:

Section 3022 of the Affordable Care Act, added a new section 1899 to the Social Security Act (the Act) that requires the Secretary to establish the Shared Savings Program by January 1, 2012. This program is intended to encourage providers of services and suppliers (e.g., physicians, hospitals and others involved in patient care) to create a new type of health care entity, which the statute calls an “Accountable Care Organization (ACO)” that agrees to be held accountable for improving the health and experience of care for individuals and improving the health of populations while reducing the rate of growth in health care spending. Studies have shown that better care often costs less, because coordinated care helps to ensure that the patient receives the right care at the right time, with the goal of avoiding unnecessary duplication of services and preventing medical errors.

Here's the introductory paragraph from the CMS summary:

ACOs create incentives for health care providers to work together to treat an individual patient across care settings – including doctor’s offices, hospitals, and long-term care facilities. The Medicare Shared Savings Program will reward ACOs that lower growth in health care costs while meeting performance standards on quality of care and putting patients first. Patient and provider participation in an ACO is purely voluntary.

How will this work? And, will it work?

Let's dig in.

The proposed rule would require providers participating in an ACO to notify the beneficiary that they are participating in an ACO, and that the provider will be eligible for additional Medicare payments for improving the quality of care the beneficiary receives while reducing overall costs or may be financially responsible to Medicare for failing to provide efficient, cost-effective care. The beneficiary may then choose to receive services from the provider or seek care from another provider that is not part of the ACO.

. . . Medicare would continue to pay individual providers and suppliers for specific items and services as it currently does under the fee-for-service payment systems. The proposed rule would require CMS to develop a benchmark for savings to be achieved by each ACO if the ACO is to receive shared savings, or be held liable for losses. Additionally, an ACO would be accountable for meeting or exceeding the quality performance standards to be eligible to receive any shared savings.

So, the PPO character of Medicare would not change: "The provider may not require a beneficiary to obtain services from another provider or supplier in the same ACO."

How can you be held accountable, as a provider group, if you cannot control the management of care of your patients? I'm not blaming CMS for this contradiction. The agency is simply implementing what Congress and the President ordered it to do. There is no way Congress will limit choices among the Medicare population.

Real cost savings will not result from ill-conceived government laws and regulations: They will occur when physicians and other health professionals redesign the work that takes place in their offices and hospitals. Attempts to generate that redesign by government regulations, especially self-contradictory ones like this, will fail.