Corporate Compliance

Note from the instructor: New Codes to Replace Modifier 59-New Medically Unlikely Edits (MUE) Guidance

Medicare Insider, September 2, 2014

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This week’s note from the instructor is written by Kimberly Anderwood Hoy Baker, JD, CPC, regulatory specialist for HCPro.  
 
CMS released two One Time Notice transmittals, effective January 1, 2015, significantly affecting the National Correct Coding Initiative (NCCI). One of the transmittals on MUEs provides further details on the MUE Adjudication Indicator (MAI). See Debbie Mackaman’s prior Medicare Insider note on MAIs here. The other transmittal introduces four new modifiers that will replace modifier 59 in many cases, which will require significant education to coders to ensure correct application.
 
One Time Notice Transmittal 1421 details the new MAI that was introduced in a Special Edition MLN Matters article published in July regarding bilateral procedures. The MAI is also included in the July 2014 quarterly version of the MUE file, along with a column indicating the rationale for the MUE number. Although MAIs were added in July and a discussion referred to them in the Special Edition MLN Matters article, this is the first detailed description of the policy and implementation of the MAIs.
 
As discussed in Debbie’s article, mentioned above, there are three MAIs indicating whether the edit will be applied by line on the claim or by date of service, as well as whether the date of service edits can be appealed or not. For those applied by line (MAI of 1), providers can use modifiers to override the edit by moving excess units to another line. They can also appeal excess units if there is no applicable modifier or if they are providing more than the modifier lines will allow.
 
For the date of service edits, the new transmittal makes clear that not only does the edit sum all units on the claim, regardless of modifier, but also sums all units in other claims processed for that date of service to prevent providers from overriding the edit by simply submitting multiple claims. The date of service edits with an MAI of 2 may not be overridden by the contractor either in initial determinations or appeals (redeterminations), thus they were originally presented as “un-appealable”. However, the transmittal points out that higher level contractors can override this “sub-regulatory” guidance and approve higher units in limited cases and the processing contractor can override the edit if directed to do so by these contractors. Contractors can override date of service MAIs of 3 if presented with documentation showing the units were provided and reasonable and necessary.
 
CMS pointed out one matter regarding ABNs that I thought was rather odd. They have previously stated, and repeated in this transmittal, that the edits are coding edits and therefore the provider cannot give an ABN for excess units over the MUE. However, they acknowledged that the claims contractor could review a MUE denial and determine that the excess number were in fact provided, and therefore there was no coding error, but that the excess units were not reasonable and necessary. This would change the edit reason to not reasonable and necessary, but because of the limitation on provision of ABNs for these edits, the provider would be prohibited from anticipating this situation and giving the patient an ABN. This means that the excess units will be denied as not reasonable and necessary and the patient will be protect from liability because no ABN was issued, leaving the facility responsible for these units with no recourse to be paid by either CMS or the patient, even though CMS acknowledges they did provide the service and it was not a coding error.
 
Other new guidance directs contractors on application of the edits to CAH claims to ensure that the edits are applied separately to the units of service provided by the facility, the physician/primary surgeon, and assistant surgeon. 
 
The other transmittal significantly affecting NCCI, released this week, introduces new replacement modifiers for modifier -59 in many cases. Modifier 59 is the most commonly use modifier hospitals use to override procedure to procedure (i.e. bundling) edits in the NCCI. HCPro’s Steven Andrews wrote an article about this change, available here. The new modifiers are collectively referred to as “-X{EPSU}” modifiers by CMS. They are defined as follows:
·         -XE: Separate Encounter, A Service That Is Distinct Because It Occurred During A Separate Encounter
·         -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
 
CMS will continue to recognize modifier -59, but modifier -59 is normally a modifier of last resort when no more specific modifier applies. These new modifiers will provide more specific information regarding why the two services are appropriately reported and, therefore, if one of them applies, they will take precedence over modifier -59.
 
The transmittal indicates that at this time CMS will continue to accept either 59 or the more specific modifiers, but that they encourage providers to make a “rapid migration” to the new modifiers. They are also allowing local contractors to require the modifiers, which will be valid modifiers effective January 1, in certain cases where the contractor has identified they may be needed for compliance or program integrity.
 
The transmittal provided very little guidance on the specific use of the modifiers and does not provide any examples. The NCCI manual update for January 2015 may provide additional information, including examples of their use in specific situations, when it is published in December. I also wonder if CMS may use modifier XE (Separate Encounter) in place of modifiers 76 through 79 for overriding the multiple procedure discount for surgical services occurring in separate sessions at hospitals. Currently, providers are instructed to use the 70s series modifiers, but XE seems to more accurately describe the situation CMS is trying to capture with a single modifier, in order to know when to override the multiple procedure discount for surgical procedures.
 
These two transmittals have very different implications for providers. The MAIs give providers additional information regarding MUEs, but arguably may require little operation adjustment. On the other hand, use of the new –X{EPSU} modifiers may require significant education to coders and others in the hospital and may even require adjustment to chargemaster processes currently in place. In addition, because contractors may require the modifier in some jurisdictions and not others, providers will have to be vigilant watching for coding policies that may require them to use these modifiers in specific situations in their own jurisdictions. I would encourage business offices and coding departments to watch for further updates from their contractor and in the NCCI Manual for 2015.



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