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CMS-1403-FC
We received a number of comments addressing issues
outside the scope of this rulemaking, in particular, the
in-office ancillary services exception to the physician
self-referral law, which is codified in §411.355(b) of our
regulations. Commenters believed that we must curtail the
types of arrangements currently permitted under the in-
office ancillary services exception in order to curb
overutilization through the ordering of unnecessary
diagnostic tests.
After careful consideration of the comments that we
received, we are adopting a flexible approach that
incorporates both proposed alternatives. We are finalizing
Alternative 1 with some modifications, and retaining with
some modifications the present “site-of-service” approach
(Alternative 2) to allow physicians to consider both
approaches in determining if the anti-markup provisions
apply to particular diagnostic testing services.
Arrangements should be analyzed first under Alternative 1.
Thus, where the performing physician (that is, the
physician who supervises the TC or performs the PC, or
both) performs substantially all (at least 75 percent) of
his or her professional services for the billing physician
or other supplier, none of the services furnished by the
physician on behalf of the billing physician or other
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