CMS Publishes Final Anti-Markup Provisions

On October 30, 2008, CMS published on its website the 2009 Physician Fee Schedule containing final anti-markup provisions. Generally, payments for diagnostic tests performed by outside suppliers subject to the anti-markup rule may not exceed the lowest of the performing supplier’s net charge to the billing physician, the actual charge, or the fee schedule amount for the test that would be allowed if the performing supplier billed directly. Under the final rule, payments for the technical components of diagnostic tests purchased from an outside supplier will be subject to the anti-markup rule under two alternative scenarios. Under the first alternative, the anti-markup rule applies when services are outright purchased from an outside supplier or supervised by a physician not sharing a practice with the billing physician. A physician will be deemed to share a practice should that physician perform substantially all services for the billing physician. Mirroring the standard applied in the self-referral rule, physicians performing 75 percent of total services for the billing physician will be considered to meet the “substantially all” test. Under a second alternative, the anti-markup rule applies when the technical component is not performed in the office of the billing physician or other supplier. The office of the billing physician or other supplier is defined for individuals as the “space where the physician or other supplier regularly furnishes patient care” or for physician organizations as the “space in which the physician organization provides substantially the full range of patient care services that the physician organization provides generally.” The final 2009 physician fee schedule rule with the anti-markup provisions will be published in the November 19 Federal Register and will become effective on January 1, 2009. Details regarding the final 2009 Physician Fee Schedule containing the anti-markup provisions can be found here:

http://www.cms.hhs.gov/PhysicianFeeSched/PFSFRN/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=4&sortOrder=ascending&itemID=CMS1216674&intNumPerPage=10