Wachler & Associates Health Law BlogCMS Expands 36-Month Rule to Hospices
Hospice care has become an area of program integrity focus for the Centers for Medicare & Medicaid Services (CMS). Pursuant to that focus, CMS recently expanded the rules and scrutiny that it applies to hospices, including expanding the 36-month rule to apply to hospices.
The 36-month rule is a rule regarding changes of ownership in certain types of Medicare-enrolled entities. If an entity undergoes a change of majority ownership within three years of its initial enrollment in Medicare or within three years of its most recent change of majority ownership, the Medicare provider agreement generally cannot be transferred to the new owner. The new owner is generally required to enroll in Medicare as a new entity, including undergoing all site surveys, accreditations, and other requirements. In the absence of a new enrollment, the new owner will not be permitted to bill under the entity that it just bought. Purchases outside the 36-month window are generally not subject to this rule. Historically, the 36-month rule applied to home health agencies (HHAs). CMS has now expanded it to apply to hospices as well.
Further, CMS has redesignated some hospices as high-risk providers, subject to additional enrollment requirements. CMS classifies provider types based on the perceived risk that the provider type poses to the Medicare program. Hospices are generally in the “moderate risk” category, requiring a site visit on top of the standard enrollment screenings. However, in the recent rule, CMS designated newly-enrolling hospices and those reporting a new owner (5% or more) as part of the “high risk” category. All owners of newly-enrolled hospices and new owners of existing hospices will be required to submit fingerprints for a criminal background check. Note that a new hospice owner may be subject to “high risk” screening without implicating the 36-month rule depending on the nature of the purchase and how much of the ownership interest is transferred. Sales and purchases of Medicare-enrolled entities may also be subject to “change of ownership” or “change of information” requirements, again depending on the nature and amount of the transfer.
In additional to financial considerations, parties looking to purchase or sell the interests in or assets of a Medicare-enrolled provider should be mindful of the numerous regulatory compliance issues present in such an arrangement, especially in areas that regulators consider to be high risk, such as home health and hospice.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare law and regulation. If you or your healthcare entity has any questions pertaining to 36-month rule or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.