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CMS-1403-FC
independent contractor arrangements to bring pathology
services in-house and then claim that a referral is exempt
from the physician self-referral prohibition because it
meets the requirements of the in-office ancillary services
exception or some other exception. The commenter stated
that pathology is a separate physician specialty and the
provision of these services is not ancillary to the
provision of urology or gastroenterology. According to the
commenter, pathology services provided in-office do not
serve the patient’s convenience or increase access to these
services as they are too time consuming and complex to
perform, as the patient has always left the doctor’s office
by the time the pathology examination is complete and the
report issued. The commenter argued that not allowing
pathology services to be protected by the in-office
ancillary services exception would be consistent with the
physician self-referral law and would eliminate the
incentive for overutilization that currently exists.
Response: For the same reasons expressed in the
response to the previous comment, we are not establishing
an exception to the anti-markup payment limitation, for
multi-specialty groups. We also note that because we have
adopted the first proposed alternative with modification,
whereby the anti-markup provisions will not apply to TCs
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