The revised Anti-Markup Final Rules were published by CMS on November 19, 2008 in the Federal Register, as part of the Medicare 2009 Physician Fee Schedule. The entire text of the 2009 Medicare Physician Fee Schedule and the related rules, i.e. Anti-Markup, Independent Diagnostic Testing Facility, physician referral issues, etc. were posted by the Med Law Blog on November 21, 2008. The 2009 Anti-Markup Rules are a simpler version of the 2008 and 2007 proposals. Rather than defining the details of purchased technical components and purchased professional components, based upon the location and employment status of the physicians and technicians, CMS has stated that the Anti-Markup Rules will apply to diagnostic tests [as defined in Social Security §1861(s)(3),] ordered by the billing physician or supplier, or by a related party [as defined by CFR §413.17] unless the test is performed by a physician who shares the practice with the billing physician or supplier.
2009 Anti-Markup Rules
The financial provisions of the 2009 Anti-Markup Rules provide that compliant arrangements may bill globally for the full physician fee schedule amount but noncompliant transactions will be paid the lowest of the following:
(a) the billing physician or suppliers net cost to purchase the diagnostic test;
(b) the actual charge to the patient/beneficiary; or
(c) the Physician Fee Schedule amount.
The technical components of the tests are deemed to be performed by the physician who supervises the performance of the technical components (as defined in 42 CFR §410.32) and the professional component is performed by the interpreting physician. Note that the supervision requirements of §410.32 are independent of the supervision requirements imposed upon Independent Diagnostic Testing Facilities (IDTFs) and that CMS has decided that physician entities and organizations performing diagnostic tests need not register as Independent Diagnostic Testing Facilities in 2009.
There are two categories of shared practice, i.e. substantial services and same office.
First, CMS defines a shared practices as a situation in which a performing physician furnishes substantially all of his professional services (which is defined as at least 75% of the total professional services provided by that physician to coincide with the substantially all definitions of the physicians self-referral regulations) through the billing physician or other supplier. This "substantially all" test can be measured either prospectively or retrospectively, so that it will be satisfied if the billing physician or other supplier has a reasonable belief that either:
(a) for the twelve months prior to and including the month in which the service was performed, the performing physician furnished substantially all of his or her professional services through the billing physician or supplier; or
(b) the performing physician will furnish substantially all of his or her professional services through the billing physician or other supplier for the next twelve months, including the month in which the service is performed.
Note that this arrangement will not prohibit temporary or locum tenens arrangements, because under locum tenens arrangements the services of the substitute physician will be billed in the name of the billing physician whom that substitute physician is replacing.
Second, a physician will also be deemed to share a practice with the billing physician or other supplier if the physician i s an owner, employee or independent contractor of the billing physician or other supplier and the technical component or the professional component is performed in the office of the billing physician or other supplier. The "office of the billing physician" is any medical office space, regardless of number of locations, in which the ordering physician regularly furnishes patient care, it includes space where the billing physician furnishes diagnostic testing if the space in located in the same building in which the ordering physician regularly furnishes patient care. Note that the "same building" is defined by §411.351 of the Physician’s Self-Referral Regulations.
The same office requirement eliminates the need to measure the relative professional services of the performing physician. The performing physician could provide services to multiple physician practices, without regard to the substantially all test, so long as the performed services are performed in the office of the billing physician. Although this would eliminate the use of a centralized building to provide diagnostic tests, it would not eliminate arrangements known as "pod laboratories" for multiple practices, provided all of the pod laboratories are located in the same building in which those other practices regularly perform patient services.
The effective date of the 2009 Anti-Markup Provisions will be January 1, 2009.