On January 3, 2008, the Centers for Medicare & Medicaid Services (CMS) published a notice delaying a provision of the final calendar year 2008 Medicare physician fee schedule rule that expands the scope of the anti-markup rule for diagnostic tests. As discussed in greater detail in a Reed Smith memorandum, the final physician fee schedule rule applied the anti-markup provision to both the technical and professional component billed by the ordering physician if the test is performed in a location outside of the office billing physician or other supplier, or if it is obtained by an outside supplier who does not reassign its right to Medicare payment to the physician practice. In light of continuing questions regarding the definition of the “office of the billing physician or other supplier” and concerns that the provision could disrupt access to diagnostic tests, CMS is delaying until January 1, 2009, the applicability of the revised anti-markup provisions, except for certain provisions applying to anatomic pathology diagnostic testing services furnished in space that: (1) is utilized by a physician group practice as a “centralized building” for purposes of complying with the physician self-referral rules; and (2) does not qualify as a “same building” as defined in CMS regulation. In addition, CMS is not delaying the applicability of the revised anti-markup rule with respect the technical component of any purchased diagnostic test. CMS intends to offer additional guidance and potentially new regulatory provisions regarding the anti-markup provisions later in the year.
