Proposed 2009 MPFS: Once Again, Imaging Takes a Disproportionate Impact

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In what seems to be becoming as much a harbinger of summer as fireworks or cookouts, on July 7, 2008, CMS published its proposed Medicare Physician Fee Schedule (MPFS) payment update for the next fiscal year. Once again, it includes a number of provisions intended to address CMS concerns about the appropriateness of the provision of imaging services.1 This year, CMS continues to struggle with some of its past concerns, such as the appropriate breadth of Medicare’s Purchased Diagnostics Rule (PDR), while taking an initial foray into the setting of standards for the provision of diagnostic services furnished in a physician’s practice setting.

These proposals, if adopted in the MPFS update final rule, will significantly affect the provision of diagnostic services, including imaging services—and, for some physicians and imaging centers, the financial viability of continuing to furnish such services. Unfortunately, many of these proposals raise more questions than they answer. At this point, we are again left with considerable uncertainty at a time when many imaging centers must make critical operational and business decisions in response to increasing costs and decreasing revenues.

During the past couple of years, CMS has been criticized for adopting a number of additional supplier standards for IDTFs when IDTFs were already the suppliers subject to the most quality-of-care standards.

This disparity was especially telling when compared with the Medicare standards for the delivery of diagnostic services in a physician’s office. In fact, in response to the growing number of IDTF supplier standards, some IDTFs considered alternative Medicare enrollment options, such as physician group practice or physician-directed medical clinic, in order to alleviate the effects of the new IDTF supplier standards.

In the MPFS update, CMS attempts to close this loophole by requiring all physician and nonphysician practitioner organizations2 performing diagnostic testing services (with the exception of diagnostic mammography services) for Medicare beneficiaries and enrolled in the Medicare program as clinics, group practices, or physician offices to enroll as IDTFs.3 CMS proposes defining a physician or nonphysician practitioner organization as any physician or nonphysician practitioner entity that enrolls in the Medicare program as a sole proprietorship or organizational entity, such as a clinic or group practice. Because of expected enrollment delays, existing suppliers would have until September 30, 2009, to comply with this new rule. New suppliers, however, would have to comply as of January 1, 2009.

CMS would not impose all of the IDTF supplier standards on physician and nonphysician practitioner organizations. Specifically, CMS has indicated that the following IDTF supplier standards would not apply to physician and nonphysician practitioner organizations enrolling as IDTFs:

  • maintaining additional comprehensive liability insurance for each practice location,
  • maintaining a formal clinical compliance process,
  • posting IDTF standards,
  • maintaining a visible sign posting business hours, and
  • separately enrolling each practice location.

CMS, however, is seeking specific comment as to whether the physician or nonphysician practitioner organizations should be exempt from any other standards.

Clearly, some additional carveouts will be required. For instance, as the proposal is currently drafted, physician and nonphysician organizations enrolling as IDTFs would be prohibited from sharing space with any other Medicare-enrolled person or entity. That is, when the regulation was taken to its logical extreme, such IDTFs could not share equipment or space with the underlying physician or nonphysician organization. Presumably, CMS did not intend such a limitation.

CMS is also seeking comment on two other issues. The first is whether the proposed enrollment requirement should be limited to physician and nonphysician organizations furnishing advanced diagnostic testing procedures (such as MRI, CT, and nuclear medicine). The second is whether physician and nonphysician organizations currently use nonphysician personnel capable of complying with the IDTF nonphysician personnel standards.

Mandated Mobile Entity Billing

CMS is also proposing a new IDTF supplier standard that would require entities furnishing mobile diagnostic services to enroll in Medicare and bill directly for the mobile diagnostic services that they furnish, regardless