Physicians Convince CMS to Delay Implementation of Anti-markup Rule Pending Further Study


The implementation of the Final Anti-Markup Rule, originally published in the November 27, 2007 Physician Fee Schedule, has been delayed for the most part until January 1, 2009. On December 28, 2008, a separate final rule went on display at the Federal Register and was published officially in the Federal Register dated January 3, 2008. This final rule delayed all of the rules relating to the anti-markup of diagnostic tests, effective January 1, 2008 through January 1, 2009, except for anatomical pathology tests performed in a "centralized building" that does not also meet the definition of "same building" as those terms are defined in the Stark regulations. In addition, the rules also remain in effect for "purchased diagnostic tests."

For the time being, the delay in implementation of the greater part of the antimarkup rule should alleviate the fears of many physician practices that diagnostic tests that were not performed in the same office where they provided substantially the full range of services would be subject to an antimarkup rule. That rule would have limited payment to the physician practice, for all intents and purposes, to the payments for the technologists and physicians interpreting the test without including any overhead costs, let alone profit margin.

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