Memphis Medical Society Update

DENISE BURKE

Final Medicare Physician Fee Schedule for 2009

On October 30, 2008, the Centers for Medicare and Medicaid Services (CMS) put on display the final Medicare Physician Fee Schedule (MPFS) for 2009 which includes the final anti-markup rules and IDTF enrollment rules. The Final Rule is generally favorable to physicians regarding regulatory issues (at least when compared to the Proposed Rule). Some highlights of the Rule are outlined below.

Anti-Markup Rules:

CMS chose to adopt a combination of alternative approaches previously included in the Proposed Rule. A practice is only required to meet one of the alternatives.

Alternative 1: If physicians supervising technical component (TC) or performing professional component (PC) performs substantially all (at least 75%) of his or her professional services for the billing physician or supplier, the anti-markup rule would not apply.

Alternative 2 (if Alternative 1 does not work) is a site of service approach that was modified from the original proposal: TCs supervised and conducted in same office as billing physician, and PCs performed in same office as billing physician will not be subject to anti-markup rule. For purposes of this test, the office of the billing physician is the same building where the ordering physician performs substantially the full range of patient care services that the ordering physician generally provides.

The current anti-markup rules for “purchased” tests from outside suppliers will be deleted. If a physician meets one of the alternatives above, there is no longer a separate payment limitation imposed on “purchased” services.

Under the Final Rule, Physicians can appoint a non-radiologist to serve as the supervising physician for their in-office equipment. Under the Proposed Rule, many groups would have been required to assign supervisory responsibility to a radiologist.

Independent Diagnostic Testing Facilities (IDTFs):

CMS will not require physicians who perform diagnostic testing to enroll as IDTFs at this time, primarily because MIPPA will require that all sites that provide CT, MR, and nuclear medicine services (including PET) for Medicare patients to be meet accreditation standards by January 2012. This is a very important concession, since requiring physicians to enroll as IDTFs would have prohibited all shared facility arrangements.

All mobile entities performing diagnostic testing will be required to enroll as IDTFs and mobile IDTFs will be required to bill CMS directly (except for those providing services “under arrangement” with hospitals).

CMS intends to treat an entity that “leases equipment and provides a tech that performs the services” as providing the service and thus would require the entity to enroll as an IDTF. It appears that this requirement will prohibit block leases of equipment with a tech to a physician practice, but since this issues was not discussed in the preamble, providers will undoubtedly solicit “clarification” from CMS.

Gainsharing:

Unfortunately, CMS chose not to issue a final gainsharing Stark exception to the physician self-referral law at this time. Instead, CMS is seeking additional comments in to formulate an exception that protects programs that have the transparency and accountability to ensure quality of care and prevent disguised payments for referrals.

Speech-Language Pathology Added to Designated Health Service (DHS):

Outpatient “speech-language pathology services” will be considered DHS subject to the Stark Law, effective July 1, 2009.

As usual, the Rule is complicated and we should hear clarifications from CMS during the next few weeks. These are just a few of the highlights of a 1459 page Rule that may be of interest to physician groups, but cannot be used as legal advice for any particular practice. The final rule was published in the Federal Register on November 19, 2008. Comments will be accepted regarding specified sections until December 29, 2008. The display copy of the final rule can be found at: http://edocket.access.gpo.gov/2008/E8-26213.htm

Denise Burke of Butler Snow Attorneys concentrates her practice exclusively on healthcare issues. She is an A-V rated lawyer by Martindale-Hubbell, voted a Mid-South Super LawyerC for three years in a row (awarded to top 5%) and is the only West Tennessee lawyer honored by Chambers USA as a top tier health care regulatory lawyer in Tennessee.