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52 U. Louisville L. Rev. 559 (2014)
The Risk of Shared Savings in the Commercial Insurance Market
Christopher B. Thurman*
Abstract

This Note is organized into three parts. Part II provides a brief overview of ACOs under the MSSP. It transitions into a discussion of commercial ACOs, including one operating in Kentucky. It concludes with an overview of ACO criticism. Part III discusses states’ authority under the McCarran-Ferguson Act and the Employee Retirement Income Security Act (ERISA) savings clause to regulate insurance. It further discusses how a provider organization assumes insurance risk. It concludes that a commercial ACO assumes such risk in a shared savings arrangement. Part IV discusses Kentucky’s Insurance Code and whether it adequately regulates commercial ACOs. Part IV concludes by proposing that Kentucky’s legislature should enable the Department of Insurance to regulate commercial ACOs to ensure accountability.

* J.D. Candidate, May 2014, Louis D. Brandeis School of Law, University of Louisville; B.A., 2002, Loyola University of Chicago. The author thanks the University of Louisville Law Review Volumes 51 and 52, especially Ashley Haile, John Hardesty, Nick Whitt, and Benjamin Hardy, his family, especially his wife Rachel Desamero and his brother Peter L. Thurman Jr., and the faculty at the University of Louisville Law School. Without their guidance and support, this Note would not be possible.