On June 30, 2008, the Center for Medicare and Medicaid Services (CMS) released its 2009 Proposed Medicare Physician Fee Schedule containing proposed rules for a new gainsharing exception, independent diagnostic testing facilities and revisions to the anti-markup rule. Public comments on these new rules are due to CMS by August 29, 2008.

Proposed Imaging Facility Changes

CMS proposes a rule that would require all locations providing diagnostic tests (except diagnostic mammography) to be certified as independent diagnostic testing facilities (IDTFs). If adopted, the ability of physician practices to share diagnostic imaging equipment would be eliminated, even if the equipment is located in the “same building” as defined under Stark Law. CMS proposes a September 30, 2009, effective date for all non-IDTF providers rendering diagnostic services to enroll as IDTFs.

Proposed Anti-Markup Rule Revisions

CMS proposes revisions for the “anti-markup rule”, formerly known as the purchased diagnostic test rule, which limits physicians from marking up any diagnostic test performed on equipment outside a “physician’s office”. CMS seeks comment on various aspects of the rule, including two alternative approaches to its application. One approach would apply the rule in all cases where the professional or technical component of a diagnostic testing service is either (a) purchased from an outside supplier, or (b) performed or supervised by a physician who does not share a practice with the billing physician or group. Alternatively, CMS suggests maintaining the current proposed rule but expanding the definition of “physician’s office” to include testing that is performed within the same building where the billing physician regularly furnishes patient care (as opposed to the same suite).