CMS postpones controversial anti-mark up rule

LAHAINA, Hawaii — An anti-markup measure included in the Medicare fee schedule for 2008 has been postponed by the Centers for Medicare and Medicaid Services for 1 year. However, the ruling may be illegal, claims a health care attorney.

David M. Glaser

If enacted, the measure would have made significant changes to reimbursements received for certain diagnostic testing. The ruling, 1842(n), was designed to further restrict orthopedists from receiving reimbursement for imaging, said David M. Glaser, JD, a health care attorney specializing in orthopedic matters. His comments came during a presentation to attendees here at the Orthopedics Today Hawaii 2008 meeting.

"The bill would have prevented orthopedists from marking up imaging that was done outside his or her main clinic," he said. "That means if a surgeon ordered imaging from somewhere that he or she did not perform a full range of services, that surgeon is purchasing the test from his or her techs."

Glaser said the ruling meant that, under these conditions, if a surgeon pays a tech $300 per day and the tech performs 15 tests in a day, the surgeon can only bill Medicare $20 for the scan.

"This is insane," Glaser said. "And I believe it is illegal."

He said the agency has overstepped its authority in trying to include this in the fee schedule because it does not address who supervises the test, as in the past, and it now was basing reimbursement on where the test was performed.

"The government does not have the authority to do that," he said. "But they did it anyway."

This sends a message to all orthopedists, Glaser said. "You need to be politically involved and you need to be cynical consumers of advice. Just because the government says you can not do something, you have to look to see if they have the authority to make that claim."

For more information:

Glaser DM. Umbrella mergers. Presented at Orthopedics Today Hawaii 2008. Jan. 13-16, 2008. Lahaina, Maui, Hawaii.