Anecdota

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ChiroSecure’s Risk Issues Associated with Modifier 59 Mike Miscoe


Good afternoon, everybody. My name is Michael Miscoe. I’m a healthcare lawyer and also a forensic
coding expert. Today we’re going to talk a little bit about
Modifier 59 because this creates a lot of problems for providers in post-payment review. Fundamentally, it’s a pretty simplistic modifier
to understand when you read it, however, we’re going to discuss that there’s a technical
definition of this modifier and then there’s a practical definition that you need to be
aware of so that you can minimize or mitigate post-payment risk associated with use of this
modifier. Fundamentally, the modifier is defined as
a distinct procedural service, and CPT goes on to indicate that under certain circumstances
a physician may need to indicate that a procedure or service was distinct or independent from
another procedure or service performed on the same day. So fundamentally, for the modifier to be required
or to even be relevant, we have to be talking about two services and one of those services
is usually considered to be part of the other service, which is a nifty way of saying that
one service bundles into another service most of the time. However, in certain circumstances it’s appropriate
to report those two services separately. And the most common example of this is chiropractic
spinal manipulation and manual therapy and some payers even extend this rule to extremity
manipulation as well. And the basis of this bundling relationship
is not found in CPT because there’s no question that manipulation of the spine for alleviation
of a neuro-physiologic joint dysfunction is and all the pre-, inter- and post-service
work that’s associated with the CMT is very, very different in most cases from manual therapy,
which is a non-physician practitioner service. It does not include any inherent pre- and
post-service E&M work, evaluation and management work, and it involves services that, prior
to 1995 had a bunch of different codes. For example, soft tissue mobilization was
separately coded, joint mobilization was separately coded, manual traction was separately coded. It also includes things like lymphatic drainage. And interestingly enough, it also includes
manipulation where manipulation is performed by a non-physician practitioner, as opposed
to a chiropractor for neuro-physiologic joint dysfunction. That’s why chiropractors usually perform manipulation
or the osteopathic manipulative techniques, which are performed to alleviate somatic dysfunction. That inclusion of manipulation not withstanding,
there are some technical circumstances when you really look at the definition of Modifier
59, the expanded definition, and it focuses on concepts like separate anatomic site, separate
lesion, and those are the big ones, or separate condition of course. And certainly a chiropractor, it is not uncommon
for a chiropractor to diagnose subluxation in the spine for which they performed manipulation
and then also identify other conditions in the soft tissues that are near the spine such
as hypertonicity, your various -itises, -opathies and syndromes that you might perform manual
therapy services, which might include manual traction of the soft tissues, soft tissue
mobilization techniques like trigger point therapy and things of that nature. And under the basic definition, the technical
definition of Modifier 59, the manipulations performed for one condition in one anatomic
site, the manual therapy is performed for a separate and distinct ICD10 diagnosable
condition in a separate anatomic location. Therefore, you would think that you could
un-bundle those services provided that your documentation substantiated that the manual
therapy had a separate and distinct therapeutic purpose from the manipulation and wasn’t performed
simply to prepare the patient for manipulation. Now technically that’s as true, as true gets,
and if you really dig into definition of separate anatomic location, you get into issues where
the two sites are in the same organ system. They can’t be contiguous. I won’t bore you with the hyper-technical
analysis of what that means and how it applies. But suffice it to say, that technically you
should be able to separately report manual therapy, CPT97140, from a manipulation billed
under a CMT code 98940 through 98942 when the service absolutely was soft tissue mobilization
for a separately diagnosed condition. Now when you get into manual traction of joints
and or mobilization of joints, and there is a technical difference between mobilization
and manipulation, and those joints are in the same vertebral region as the joint you’re
manipulating … So say you did a technical manipulation of C5 and you traction C6 and
C7 and you did a mobilization of the atlas, in that circumstance, I don’t think we can
substantiate the separate anatomic site, or the separate condition because dysfunction
isn’t resolve down to the specific segmental level, so we can’t diagnose that as separate
conditions and in that circumstance, the bundling would appear technically appropriate. But then there’s the practical rule, and I
call it the zip code rule. Most payers when you’re talking about this
specific code pair, look at whether the manual therapy technique, regardless of what it was,
they don’t even delineate or seem to understand that manual therapy can be a variety of different
things, is performed in the same body area as the manipulation, which means, for example,
if you did manipulation in the cervical spine, and you did trigger point work in the muscles
up around the neck, I’ll say the upper mid-trapezius and whatever else is out there, deltoids [inaudible
00:07:39], I don’t know. I didn’t go to doctor school so don’t laugh
at me. But then they would say, well those are in
the same area, or the same body area as the manipulation was performed and therefore they
want to bundle it. And if they’re relying on the national correct
coding initiative, you know, appropriately or not, that isn’t the technical result that
you get. Or if they’ve drafted their own policies and
they incorporate a Modifier 59 they create a conflict because the Modifier 59 analysis
as it’s defined in CPT, which is standard for all covered entities under HIPAA, that
creates a conflict with the policy definition that relies on 59 but attempts to redefine
it without actually redefining because they cannot redefine the modifier because it’s
description as standard in the the HIPAA-mandated code set. So there’s this conflict. So you know, from a risk perspective, you
have to know that if you’re performing anything, most specifically a manipulation manual therapy
and you’re trying to get separate payment for the manual therapy by putting a 59 modifier,
payers audit that code pairing and the use of that modifier very severely. So you’re gonna make yourself an audit target. Whether we win or not really isn’t relevant. I mean, you know, the process is costly enough
in which case to the extent that you can, you need to identify treatment alternatives
that don’t put you into a situation where you’re billing a code pair that where there’s
a bundling relationship. Some other common problems with Modifier 59
is that people use it when they don’t need it rather than investigate under the payer-specific
roles, whether they have established any bundling relationships or they’ve incorporated the
correct coding initiative, bundling rules, providers just tend to throw modifiers on
any everything just in case they need a modifier. And that is really a dangerous approach because,
for example, let’s say you were doing something simple like a manipulation, spinal manipulation,
electric stimulation, and you decide to put a 59 modifier on your electrical stimulation
code. Well there is virtually no CCI edit that would
require a Modifier 59 on a CPT 97014 unless you were doing it in conjunction with attended
manually applied electric stimulation, which is very unusual. So in that circumstance, Modifier 59 isn’t
required and when you report it, you stand out like a sore thumb because you’re the only
guy or gal billing 97014 with Modifier 59, so you’re an outlier. You’re also an outlier as far as the number
of procedures that you bill with Modifier 59 so, you know, it’s a great way to get a
lot of attention. I, you know, comically tell providers, I mean,
you would get less attention from a payer SIU investigator if you went to their office
and set their desk on fire and left your card. You know, they tend to audit this 59 modifier
issue quite severely and you know, let’s face it, they got more money than you do. They can, you know, they control the process
and their beliefs regarding the modifier, whether accurate or not, just aren’t … and
whether supported by medical policy or not, simply aren’t going to change. So from that perspective, you need to be especially
cautious. Some code pairs that implicate Modifier 59,
we mentioned CMT and manual therapy. Little known is CMT and neuromuscular reeducation,
which is often miscoded. That code is CPT97112. It has the same bundling relationship with
CMT. So a lot of times people, you know, miscode
massage services or manual therapy services as neuromuscular re-ed thinking that they’re
bypassing the bundling issue, well, you’re not. Some other issues if you’re doing manual therapy
in conjunction with a therapeutic activities, 97530. There’s an exclusionary relationship between
those two services, but it can be bypassed with Modifier 59, but you need to understand
the circumstances. Another one, if you’re paying attention to
the focus on direct one-on-one contact procedures where payers are auditing very heavily, whether
actual one-on-one contact was provided and was it provided by an appropriately skilled
physician or therapist. Bypassing the delegation issue for a minute,
if you’re sensitive to that issue and you’re very carefully tracking which services or
which exercises you’re performing one-on-one, which ones are performed with constant attendance
or in a group and you’re billing, you know one-on-one codes like 97110 and 97530 in addition
to group 97150, understand that the one-on-one contact procedures bundle into the group code
unless you can demonstrate through your documentation that they were performed separately in time. For example, I did therapeutic exercises one-on-one
with a patient from 9:00 to 9:15, then the patient was in a group from 9:15 to 9:30 doing
something else and then they were one-on-one for therapeutic activities from 9:30 to 9:45. I could bill a unit of 97110 for that one-on-one
15 minutes, one unit of 530 for that unit of 15 minutes and the group code for the remaining
15 minutes but the interesting thing is, the 110 and the 530 need a 59 modifier and it
doesn’t mean that they were performed that a separate anatomic site or any of that. It means that there were performed separately
in time from the group procedure and that you weren’t co-performing one-on-one and group
during the same time period. Similarly you find some relationships with
some of the time based constant attendance modalities where, if you’re performing them
concurrently, you can’t bill them separately even with a Modifier 59. Other times people misused Modifier 59 is
especially with time-based codes, they’ll bill an exercise for eight minutes and then
on a separate line they’ll bill a separate exercise under the same code for another eight
minutes with a 59 modifier. That’s improper reporting. It’s really identifiable and what you really
did is 16 minutes of sustained 97110 even assuming it was one-on-one and you should
have only billed one unit. So those are some circumstances where the
use of Modifier 59 can get you in trouble. So you need to check, make sure that you understand
when you potentially need it, what the modifier means and make sure your documentation supports
it. And don’t forget to check payer policies and
check with your colleagues to see who’s been audited on that issue and what the payer’s
position is and maybe consider, you know, either altering the services provided to avoid
those issues where you might need to report the modifier or make sure your documentation
is exquisitely clear as to why you’re using the modifier. That’s all we have time for today. I’m sorry, this went just a little bit long,
but it’s a kind of a complex issue. I do want to remind you before we say goodbye
for this afternoon to tune in next week to hear Dr. Gerry Clum, I’m sure he’s going to
have a topic that’s equally or more fascinating and you don’t want to miss it. Thanks for your attention today and we’ll
see ya. See you next time.

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