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The final Stark II regulations maintains and expands the special exception for ambulatory surgery center (ASC) services. Under the final rule, services that would otherwise constitute designated health services, but that are paid by Medicare as part of a composite payment for a group of services as a separate benefit, which includes ASC services, will not be considered designated health services for purposes of the Stark law, says Eric Zimmerman, JD, associate with McDermott, Will & Emery, a law firm in Washington, DC, that represents the American Association of Ambulatory Surgery Centers. (Editor’s note: To see the new rule, go to the Web: hcfa.hhs.gov/regs/physicianreferral/default.htm.)
"Accordingly, when an IOL [intraocular lense] is included in an ASC bundled payment rate, the IOL will not be considered to be a designated health service," Zimmerman says. "Moreover, HCFA [the Health Care Financing Administration] established an additional exception for other prosthetics, prosthetic devices, and durable medical equipment implanted in a Medicare-certified ASC by the referring physician or a member of the referring physician’s group practice, even when the Medicare payment for these items is separate from the ASC payment."
Previously, the Stark law was somewhat ambig-uous in its application to services furnished in ASCs, he says. "While we believe that Congress intended for ASC services to be outside the scope of the physician self-referral proscription, the law [previously] could be read to apply to certain services furnished in ASCs," including many common implants such as IOLs, he says.
The final rule, which was published Jan. 4, 2001, in the Federal Register, is effective Jan. 4, 2002. (Copies of the Federal Register can be found at www.access.gpo.gov/su_docs/aces/aces140.html.) The Final Rule was published with a 90-day comment period. HCFA will respond to comments no later than April 4, 2001.
[Editor’s note: On Jan. 5, American Health Consultants, publisher of Same-Day Surgery, sent a Fax Bulletin on the Stark II regulations to all SDS subscribers for whom we have a fax number. If we don’t have your fax number and you would like to receive future Fax Bulletins, please contact our customer service department with your fax number. Telephone: (800) 688-2421. Fax: (800) 284-3291. E-mail: firstname.lastname@example.org.]