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CMS-1403-FC
costs that should be included in the calculation of “net
charge” are those directly paid to the pathologist
performing the PC or supervising the TC and should be
limited to the W-2 salary income of the pathologist, not
including any bonus.
Response: After considering the issue further, we
decline at this time to make any changes to what we allow
to be included in the calculation of “net charge.” As we
stated in the preamble to the CY 2008 PFS final rule (72 FR
66319 through 66320), we are concerned that, allowing
billing physicians and other suppliers to recoup costs such
as overhead in situations in which the anti-markup
provisions apply, would undermine a purpose of the anti-
markup payment limitation because the incentive to
overutilize (to recover capital outlays and other costs)
would still be present. Therefore, where the billing
physician or other supplier pays the performing supplier a
fixed fee for the TC or the PC, the “net charge” is the
fixed fee (exclusive of any charge that is intended to
reflect the cost of equipment or space leased to the
performing supplier by or through the billing physician or
other supplier, per §414.50(a)(2)(i)). Where a fixed fee
is not paid, the billing physician or other supplier is
limited to the salary and benefits it paid to the
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