Orthopaedic Modifiers…Risky BusinessPRESENTED BY:

Pam Vanderbilt, CPC, CPMA, CPPM, CPC-I, CEMC, CEMA, CEMA-O

Senior Compliance Consultant, DoctorsManagement

Commonly Misused Modifiers

25 – Significant, Separately Identifiable E/M Service

57 – Decision for Surgery

59 – Distinct Procedural Service

24 - Unrelated Evaluation and Management Service During a Postoperative Period

22 - Increased Procedural Services

58 - Staged or Related Procedure or Service

78 - Unplanned Return to the Operating/Procedure Room – Related

79 - Unrelated Procedure or Service

Modifier 25 –E/M with Minor Office Procedures

It may be necessary to indicate that on the day a procedure or service identified by a CPT code was performed, the patient’s condition required a significant, separately identifiable E/M service above and beyond the other service provided or beyond the usual preoperative and postoperative care associated with the procedure that was performed.

Modifier 25 – E/M with Minor Office Procedures

A significant, separately identifiable E/M service is defined or substantiated by documentation that satisfies the relevant criteria for the respective E/M service to be reported. The E/M service may be prompted by the symptom or condition for which the procedure and/or service was provided. As such, different diagnoses are not required for reporting of the E/M services on the same date.

Example of When NOT

to use Modifier 25

Examples Patient presents for planned visco injection and has no other complaints.

Patient presents for new onset of shoulder pain. The provider documents a complete history and performs a detailed

exam and x-ray and orders an MRI to evaluate for possible rotator cuff tear. While the patient is in the office, they mention the cortisone injection they

received three months ago for right knee OA has worn off and requests another.

The provider agrees.

Modifier 57 – E/M with Decision for Surgery

An evaluation and management service that resulted in the initial decision to perform the surgery may be identified by adding modifier 57 to the appropriate level of E/M service.

Only report modifier 57 when the decision for surgery is made the day of or day before a 90 day global procedure.

Modifier 59 –Distinct Procedural Service

Modifier 59 is used to identify

procedures/services, other than E/M services,

that are not normally reported together, but are appropriate under

the circumstances. Documentation must

support:

a different session different procedure or surgery

different site or organ system

separate incision/excision, separate lesion

separate injury (or area of injury in extensive

injuries) not ordinarily encountered or

performed on the same day by the same

individual.

However, when another already established

modifier is appropriate it should be used rather

than modifier 59.

Modifier 59 –Distinct Procedural Service

What is another already established modifier?

First we look to the anatomic modifiers

Laterality - RT, LT, 50

Fingers – FA-F9

Toes – TA-T9

If these apply, modifier 59 should not be reported.

Modifier 59 –Distinct Procedural Service

If Anatomical Modifiers Do Not Apply

Is an X{E, S, P, U} modifier supported?

Modifier 59 –Distinct Procedural Service

XE - “Separate encounter, A service that is distinct because it occurred during a separate encounter” This modifier should only be used to describe separate encounters on the same date of service.

XS - “Separate Structure, A service that is distinct because it was performed on a separate organ/structure”

XP - “Separate Practitioner, A service that is distinct because it was performed by a different practitioner”

XU - “Unusual Non-Overlapping Service, The use of a service that is distinct because it does not overlap usual components of the main service”

Modifier 59 –Distinct Procedural Service

If Neither Anatomical or X{E, S, P, U}

Modifiers Apply

It is unlikely the service should be unbundled,

so the procedure requiring a modifier is

not reported.

But Wait…

There is an exception for timed therapy services.

Manual therapy (97140) and Therapeutic activities (97530) are bundled services.

“Modifier 59 may be reported if the two procedures are performed in distinctly different 15 minute time blocks. For example, one service may be performed during the initial 15 minutes of therapy and the other service performed during the second 15 minutes of therapy.”

To Use or Not to Use

How do we know? It’s all about the documentation!!

HOW $1,050 MILLION BECOMES $3.2 MILLION!POST-AUDIT EXTRAPOLATION MITIGATION

8/30/2019

RULES OF ENGAGEMENT

• Section 1842(a)(2)(6) of the Social Security Act requires the government to

review, identify and/or deny inappropriate, medically unnecessary, excessive or

routine services. Extrapolation techniques are used when the size of the

universe of claims prohibits a complete review of every claim. In this case, a

statistically valid random sample is drawn from that universe of claims in order

to estimate potential payment error.

CMS PUB. 100-08 CHAPTER 3 SECTION 10.1.2

• Statistical sampling is used to calculate and project (i.e., extrapolate) the amount of

overpayment(s) made on claims. The Medicare Prescription Drug, Improvement, and

Modernization Act of 2003 (MMA) mandates that before using extrapolation to determine

overpayment amounts to be recovered by recoupment, offset or otherwise, there must be a

determination of sustained or high level of payment error, or documentation that educational

intervention has failed to correct the payment error.

• By law, the determination that a sustained or high level of payment error exists is not subject

to administrative or judicial review.

FROM THE HORSE’S MOUTH

THE PURPOSE OF STATISTICAL SAMPLING

STEPS FOR CONDUCTING STATISTICAL SAMPLING

THE OIG STATEMENT ON EXTRAPOLATION FOR CIAs

• In what circumstances should the IRO review a Full Sample?

• For claims reviews that include a discovery sample, if the net financial error rate of this sample equals or

exceeds 5 percent, the IRO must conduct a full sample. The full sample should consist of a sufficient

number of paid claims to yield results that estimate the overpayment in the population to be within a 90

percent confidence and 25 percent precision level. (Note: If the net financial error rate of the discovery

sample is below 5 percent, the review is complete.)

• Does the provider need to repay an extrapolated overpayment based on the results of the

claims review?

• In CIAs and IAs with a claims review that includes a discovery sample and, if the error rate for the

discovery sample is 5 percent or greater for a full sample, the IRO must extrapolate the results of the full

sample to the population, and the provider is required to repay that extrapolated overpayment amount to

the appropriate payor(s) (e.g., Medicare contractor, State Medicaid program, etc.).

HOW THE TPE EXTRAPOLATION WORKS

• If errors continue after three rounds of

review and education, the provider will

be referred to CMS for possible further

action. Such action may include 100

percent prepay review, extrapolation

and/or referral to a Recovery Auditor.

HOW THE OMB SEES PRECISION

• In the May 5, 2010, report by the Acting Administrator and Chief Operating Officer of the

Centers for Medicare & Medicaid Services (CMS) On page 3 of that report, the section titled

“Precision-level requirements” states:

• “[Office of Management and Budget] OMB Circular A-123, Appendix C, states that Federal agencies

must produce a statistically valid error estimate that meets precision levels of plus or minus 2.5

percentage points with a 90-percent confidence interval or plus or minus 3 percentage points with a

95-percent confidence interval.”

WHAT CMS SAYS ABOUT PRECISION

• In the CMS-issued Federal Register, 72 Fed. Reg. 50490, 50495 (Aug. 31, 2007), the error

estimate should meet precision levels of plus or minus 2.5 percentage points with a 90-percent

confidence interval, and the State error estimates should meet precision levels of plus or

minus 3 percentage points with a 95-percent confidence interval.”

• 8.4.5.1 -The Point Estimate

• In most situations, the lower limit of a one-sided 90 percent confidence interval should be used as

the amount of overpayment to be demanded for recovery from the provider/supplier. This

procedure, which, through confidence interval estimation, incorporates the uncertainty inherent in

the sample design, is a conservative method that works to the financial advantage of the

provider/supplier. That is, it yields a demand amount for recovery that is very likely less than the true

amount of overpayment, and it allows a reasonable recovery without requiring the tight precision

that might be needed to support a demand for the point estimate.

AND IF IT ISN’T BAD ENOUGH . . .

• 8.4.1.1 – General Purpose

• These instructions are provided so that a sufficient process is followed when conducting

statistical sampling to project overpayments. Failure by a contractor to follow one or more of

the requirements contained herein does not necessarily affect the validity of the statistical sampling

that was conducted or the projection of the overpayment. An appeal challenging the validity of the

sampling methodology must be predicated on the actual statistical validity of the sample as

drawn and conducted and must demonstrate actual error in the methodology that affects the

overpayment amount. Failure by the contractor to follow one or more of the requirements

contained herein may result in review by CMS of their performance, but should not be

construed as necessarily affecting the validity of the statistical sampling and/or the projection

of the overpayment.

CMS IS THE AUTHORITY ON EXTRAPOLATION

• Section 8.4 in Chapter 8 of the Program Integrity Manual is only 17 pages

• CMS’s ultimate guidance for Extrapolation – nothing else matters!

• Overpayments can be extrapolated but what about underpayments?

• Excuse me. I can’t talk while I am laughing!!

• What if I disagree with the decision to pursue extrapolation?

• You need to challenge the sampling and extrapolation, not the decision, because:

• By law, the determination that a sustained or high level of payment error exists is not subject to

administrative or judicial review.

FOR MORE INFORMATION

• Frank D Cohen

• www.doctorsmanagement.com

• fcohen@drsmgmt.com

• 727.442.9117

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