Providers have at least a year to prepare for affiliation disclosures to CMS – Use this time wisely!

In September 2019, CMS issued a final rule that provided new enforcement authorities to reduce criminal behavior in its program with the goal of preventing fraud – click here for a summary. One of the more significant provisions in this final rule was a new obligation of all Medicare providers to maintain and disclose information on any affiliations with individuals or entities who were subject to certain “disclosable events,” including exclusion, suspension, revocation or an uncollected debt to Medicare, Medicaid or CHIP. However, at the time the final rule was implemented, CMS opted to utilize a phased in approach, wherein during the initial phase these affiliation disclosures would only be required upon request of CMS.

In March 2020, McDonald Hopkins published an article “Medicare, Medicaid and CHIP Enrollment: Prepare for Affiliation Disclosure Obligations,” that set out what requirements a provider will have to comply with these affiliation disclosures and discusses how providers can establish procedures now to comply with the requirements of the final rule.

Then COVID hit and everything was paused.

On March 24, 2021, CMS issued an MLN Matters article entitled “New Provider Enrollment Action Authorities,” which is directed to all current and prospective providers and suppliers. This article alerts providers that CMS will issue affiliation disclosure requests on a discretionary basis. While in general practice, CMS states it will not request affiliation disclosures until Form CMS-855 is revised, they do have the authority to request this information at any time if CMS becomes aware of a “potentially problematic affiliation.” CMS also notes that due to the public health emergency it does not plan to begin updating the Form CMS-855 until at least March 2022.

This gives providers time to create and implement a process for collecting the required information and maintaining it so that when CMS does send out the affiliation disclosure requests the provider will simply need to provide the already collected information to CMS.

Setting up and implementing this process could be very burdensome on providers, both financially and in terms of time resources depending on the size of the organization and the number and types of affiliations. Moreover, it requires providers to proactively seek this information from its affiliations because most of the “disclosable events” are not publically available.

Providers will need to determine their own direct affiliations and disclosure events; require their investors, leaders and physicians to disclose all of their affiliations and require all other affiliates to disclose all disclosure events within a reasonable period of occurrence. We recommend that providers include provisions in their operating, shareholder or partnership agreements allowing for expulsion of an investor who fails to provide requested disclosures, or whose ownership endangers the enrolling provider’s ability to continue its Medicare enrollment and to include provisions in new or amended contracts that require affiliates to disclose this information within a reasonable time frame.

McDonald Hopkins advises all providers take these next 12 months to design this process and put it in place now, rather than be in a position of trying to scramble after an affiliation disclosure request is received. If you would like assistance in structuring your entity’s response to these requirements, please reach out to one of the attorneys below.