In the Nov. 19, 2008, Federal Register, the Centers for Medicare & Medicaid Services (CMS) posted the final Anti-Markup Rule, effective Jan. 1, 2009.
Under this final rule, claims submitted for technical component (TC) or professional component (PC) for diagnostic testing are subject to the Anti-Markup Rule if:
CMS defines “performing” physician as the physician who supervises the TC, performs the PC or both.
CMS further clarifies a performing physician will be deemed to “share a practice” with the billing physician, and thus not be subject to the Anti-Markup Rule, if the performing physician meets one of the following tests.
If the performing physician does not meet the “substantially all” services requirement of this alternative, an analysis under alternative two may be applied on a test-by-test basis.
The “office” of the billing physician means any medical office space, regardless of the number of locations, in which the ordering physician regularly furnishes patient care. This includes space where the billing physician furnishes diagnostic testing, if the space is located in the same building where the ordering physician regularly furnishes patient care.
“Same building” is defined using the same definition used in the Stark Law’s In-Office Ancillary Services Exception, meaning a building with a single street address assigned by the U.S. Postal Service.
If the Anti-Markup Rule applies to the TC or PC of a test ordered by the billing physician, payment to the billing physician may not exceed the lowest of the following:
This legal column is provided by the Indianapolis law firm Krieg DeVault LLP, which provides business and legal counseling to physicians and their practices. Contact the firm at (317) 636-4341.
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