March 22, 2018

Modifier 25: Chose Wisely from Three Options

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Whatever you do, don’t bring patients back for a procedure another day just for the purposes of billing.

Determining when to use Modifier 25 can be challenging, and reasonable people can differ about whether it is appropriate in a particular situation.

When a patient needs a procedure on the day of an evaluation and management (E&M) service, you generally have three options. You may opt to bill only the procedure; that is certainly legal, though it may well leave you underpaid. You can provide both services on the same day, billing both using Modifier 25; that, of course, puts you on the Modifier 25 radar, which is perfectly acceptable as long as it was proper to append the modifier. The third and final option is to tell the patient they need to come back on a different day for the procedure. Which option is “right?” How would you rank those choices?

It isn’t reasonable to fully answer the question in the abstract. The best option will depend on the procedure and the reason for the E&M service. But regardless of the procedure, there is one thing that I will always discourage: I cannot envision a scenario in which I would recommend telling a patient to come back on a later day for a procedure simply because of the billing issue. If the procedure and visit are both billable, they are both billable on the same day with Modifier 25. If they are bundled, forcing the patient to return does not change that fact. I would much rather defend a practice for using Modifier 25 than bring the patient back.

First, and most obviously, we should always put the patient first. Making the patient come back is terrible patient care, and quality should be paramount in any medical setting. But that is not all. (This assumes that it is realistic to perform the procedure on the day in question. If it is not medically appropriate to perform the procedure the same day, obviously, the procedure should be delayed.)

Think about how you would view this case if you were a juror. The billing rules are complicated. You are not sure whether to believe the government or the physician. Which physician would you trust more: the doctor who performed both procedures and used Modifier 25, openly disclosing all of the relevant facts on the claim form, or the physician who tried to obscure the bundling question by splitting the two visits? I know that I would have a very negative view of that second physician. I would think that the effort to obscure facts implies a guilty conscience, and a tendency to prioritize profit over patients. In short, after hearing the facts, I would deeply doubt the integrity of the physician, and I would be more likely to trust the government.  

The bottom line is that it is a viable option to not to bill for or eat the E&M service. I am not recommending that, because I think you should get paid for your work. I prefer the option of billing, attaching Modifier 25, and fighting for the reimbursement. But I would strongly discourage you from inconveniencing the patient and bringing them back on another day.

As a final note, I recognize that there are some False Claims Act (FCA) cases involving Modifier 25. But as long as the guidance is as poorly written as it is, organizations should aggressively fight against any such FCA case. The recent Department of Justice memo by Rachel Brand reiterates what should be an obvious principle: government guidance should not form the basis of government action against medical professionals.

When the guidance is poorly written and confusing, that principle is even more applicable.

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

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