Page:United States Statutes at Large Volume 124.djvu/424

124 STAT. 398 PUBLIC LAW 111–148—MAR. 23, 2010 this title, based upon the number of Medicare fee- for-service beneficiaries assigned to an ACO. ‘‘(ii) ESTABLISH AND UPDATE BENCHMARK.—The Secretary shall estimate a benchmark for each agree- ment period for each ACO using the most recent avail- able 3 years of per-beneficiary expenditures for parts A and B services for Medicare fee-for-service bene- ficiaries assigned to the ACO. Such benchmark shall be adjusted for beneficiary characteristics and such other factors as the Secretary determines appropriate and updated by the projected absolute amount of growth in national per capita expenditures for parts A and B services under the original Medicare fee- for-service program, as estimated by the Secretary. Such benchmark shall be reset at the start of each agreement period. ‘‘(2) PAYMENTS FOR SHARED SAVINGS.—Subject to perform- ance with respect to the quality performance standards estab- lished by the Secretary under subsection (b)(3), if an ACO meets the requirements under paragraph (1), a percent (as determined appropriate by the Secretary) of the difference between such estimated average per capita Medicare expendi- tures in a year, adjusted for beneficiary characteristics, under the ACO and such benchmark for the ACO may be paid to the ACO as shared savings and the remainder of such difference shall be retained by the program under this title. The Secretary shall establish limits on the total amount of shared savings that may be paid to an ACO under this paragraph. ‘‘(3) MONITORING AVOIDANCE OF AT-RISK PATIENTS.—If the Secretary determines that an ACO has taken steps to avoid patients at risk in order to reduce the likelihood of increasing costs to the ACO the Secretary may impose an appropriate sanction on the ACO, including termination from the program. ‘‘(4) TERMINATION.—The Secretary may terminate an agree- ment with an ACO if it does not meet the quality performance standards established by the Secretary under subsection (b)(3). ‘‘(e) ADMINISTRATION.—Chapter 35 of title 44, United States Code, shall not apply to the program. ‘‘(f) WAIVER AUTHORITY.—The Secretary may waive such requirements of sections 1128A and 1128B and title XVIII of this Act as may be necessary to carry out the provisions of this section. ‘‘(g) LIMITATIONS ON REVIEW.—There shall be no administrative or judicial review under section 1869, section 1878, or otherwise of— ‘‘(1) the specification of criteria under subsection (a)(1)(B); ‘‘(2) the assessment of the quality of care furnished by an ACO and the establishment of performance standards under subsection (b)(3); ‘‘(3) the assignment of Medicare fee-for-service beneficiaries to an ACO under subsection (c); ‘‘(4) the determination of whether an ACO is eligible for shared savings under subsection (d)(2) and the amount of such shared savings, including the determination of the estimated average per capita Medicare expenditures under the ACO for Medicare fee-for-service beneficiaries assigned to the ACO and the average benchmark for the ACO under subsection (d)(1)(B); Limitations.