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<strong>CMS</strong>-1403-FC<br />

Act].” According to the commenter, the physician<br />

interpretation of a diagnostic test is not a service<br />

described in section 1861(s)(3) of the Act, as physician<br />

services are described in section 1861(s)(1) of the Act.<br />

Other commenters stated that, in enacting section 1842(n)<br />

of the Act, the Congress specifically limited the<br />

applicability of the anti-markup provisions to diagnostic<br />

tests. Commenters expressed concern that applying an anti-<br />

markup payment limitation to the PC of diagnostic tests is<br />

inconsistent with the plain meaning of the law and<br />

Congressional intent.<br />

Response: As explained in the preamble to the CY 2008<br />

PFS final rule with comment period (72 FR 66308 through<br />

66309), despite the fact that we implemented section<br />

1842(n)(1) of the Act to impose an anti-markup payment<br />

limitation only on the TC of diagnostic tests, we are not<br />

prevented from applying an anti-markup payment limitation<br />

to the PC of a diagnostic test.<br />

We believe that our general rulemaking authority under<br />

sections 1102(a) and 1871(a) of the Act provides us with<br />

authority to effectuate fully the Congress’s intent in<br />

enacting section 1842(n)(1) the Act to remove the profit<br />

incentive for ordering unnecessary diagnostic tests. As we<br />

indicated in the preamble to the CY 2008 PFS final rule<br />

436

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