The proposed 2009 Medicare Physician Fee Schedule also deals with proposed changes to the reassignment rules related to diagnostic tests, sometimes referred to as the Anti-Markup Provisions.  The discussion of the proposed rules, which occupies pages 237 through 260 of the Federal Register publication, which pages are attached at the link below, discusses the history of the Anti-Markup Rules, the proposed changes from 2008, the delay in implementation and the reasons therefore, and the litigation history of Atlantic Urological Associates v. Leavitt.


The 2009 Fee Schedule Proposals contain two alternatives. 


First, the new proposal is a far simpler proposal in which the Anti-markup Provisions would apply in all cases where the TC of the diagnostic tests is either (i) purchased from an outside supplier or (2) performed or supervised by a physician who does not share a practice with a billing physician or physician organization.  The most significant change is that the rules that specify that a physician who is employed by a contract with a single physician or physician organization shares a practice with that physician or physician organization.  CMS believes that when a physician provides his or her efforts for a single physician organization (regardless of whether those efforts are fulltime or part time), he or she has a sufficient nexus with that practice to justify not applying the Anti-markup Provisions.


Second, the alternative proposal is basically a re-proposal of the presently proposed rules with amendments to do the following:


1.        Clarify that the office of the billing physician or other supplier includes space in which the diagnostic testing is performed that is located in the same building in which the billing physician or other supplier regularly furnishes patient care;


2.        Clarify that, with respect to TCs the Anti-Markup Provision applies if the TC is either conducted or supervised outside of the office of the billing physician or other supplier;


3.        Clarify that a TC of the diagnostic test is not purchased from an outside supplier if the TC is supervised by a physician located in the office of the billing physician or another supplier;


4.        Clarify that, for the purposes of applying the payment limitation, the performing supplier with respect to the TC is the physician who supervised the TC and, with respect to the PC, the performing supplier is the physician who performed the PC;


5.        Propose an exception for diagnostic tests ordered by a physician in a physician organization; and


6.        Solicit comments on how to define net charge.