More Anti-Markup Rule Changes Proposed
In what seems to be becoming a new tradition, CMS's proposed Medicare Physician Fee Schedule ("PFS") for calendar year 2009 revises more than the fee schedule. Among other things (like gainsharing), it proposes further changes to last year's changes to the Anti-Markup Rule. If you have not been following the saga of CMS's changes to the Anti-Markup Rule, hopefully this Health Law Strategist article will help you catch up.
At this point, the changes from the 2008 PFS are scheduled to be effective as of January 1, 2009. The proposed 2009 PFS presents two alternatives (though CMS reserves the right to choose neither). One option is the obvious one: to let the 2008 changes go into effect as planned, using a site-of-service-based approach, with certain much-needed clarifications.
The second option is a new non-site-based approach where the Anti-Markup Rule would apply if the PC or TC is either purchased from an outside supplier or performed or supervised by a physician who does not "share a practice" with the billing physician or physician organization. A physician does not "share a practice" if he or she is employed or contracted by more than one physician or physician organization.
The new option disallows certain "on-site" arrangements which would have been otherwise permissible under the 2008 PFS revisions (such as where non-exclusive contractors come on-site to perform reads), but would allow certain services to continue to be performed in a centralized building. CMS did not propose language for the non-site-based approach, so we may have to just take it on faith that if this approach is chosen, the language will be clear and unambiguous.
The clarifications that CMS proposes applying to the 2008 PFS language include: (i) specifying that diagnostic space in the same building as other medical office space is included as part of the "office"; (ii) the Anti-Markup Rule applies if the TC is either supervised or conducted outside the office; (iii) the TC is not "purchased from an outside supplier" if it is supervised by a physician in the office of the billing physician or other supplier; and (iv) when applying the payment limitation, the "performing supplier" would be the physician who supervised the TC or the physician who performed the PC.
CMS is also soliciting comments on whether it should change either proposal, or adopt a different proposal, or further delay any or all of the changes.
