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CMS-1403-FC
Comment: Several commenters questioned the
appropriateness or the legality of imposing an anti-markup
payment limitation on the TC supervised by, or the PC
personally performed by, a physician in the same group
practice as the ordering physician. Some commenters
asserted that, because the anti-markup provision in section
1842(n) of the Act, with its relatively general language,
came first, and the much more specific requirements of the
physician self-referral law in section 1877 of the Act came
later, the Congress has defined specifically what it means
for physicians to “share a practice” for Medicare purposes
and we should not interpret these provisions differently,
particularly without providing a clear rationale for doing
so. One commenter contended that the “share a practice”
concept in section 1842(n) of the Act simply was the
Congress’ short-hand version of what later became the
lengthy definition of “group practice” in section
1877(h)(4) of the Act. Other commenters asserted that,
through the anti-markup provisions, we are overlaying a new
and inconsistent set of requirements for providing
diagnostic testing, with respect to bona fide group
practices meeting the physician self-referral law
requirements. According to these commenters, we are doing
so by relying on the “anti-mark-up” language of section
438