2008 MPFS finalized without most of the Stark 2.5 proposals

CMS announced late yesterday that it is finalizing the 2008 Medicare physician fee schedule — including the SGR-mandated negative 10% adjustment, since the SCHIP bill upending the SGR (sustainable growth rate) was DOA.  However, it is deferring virtually all of its proposed revisions to the physician self-referral rules that were slipped into the 2008 Medicare physician fee schedule — the so-called Stark 2.5 rules — to be published at a later date. 

The Stark 2.5 proposals garnered over 1,000 comment letters.  CMS staff feels "confident" that it has sufficient information to finalize the Stark 2.5 proposal without need for additional notice and comment.  The final Stark 2.5 rule will address the following proposals:

• Burden of proof;
• Obstetrical malpractice insurance subsidies;
• Unit-of-service (per-click) payments in lease arrangements;
• The period of disallowance for noncompliant financial relationships;
• Ownership or investment interests in retirement plans;
• “Set in advance” and percentage-based compensation arrangements;
• “Stand in the shoes” provisions;
• Alternative criteria for satisfying certain exceptions; and
• Services furnished “under arrangements.”

Changes to the in-office ancillary services exception will, however, be the subject of separate rulemaking, including a new notice and comment period, since the initial draft solicited input and did not propose specific changes.

The only Stark 2.5 proposal being finalized in the 2008 MPFS final rule put on display yesterday (to be published in the Federal Register November 27) is the tightening up of the anti-markup rule (discussion begins on p. 485 of the display copy of the rule linked to above).

— David Harlow