As you know, Modifier 25 enables the physician to bill an E/M code on the day of chemotherapy or other procedure as long as appropriate written documentation is provided. Unfortunately, RAC and ZPIC auditors are not interpreting the use of this modifier correctly since no one has reviewed the stream of back-up documentation and citations from the AMA, the RUC and the Federal Register that I am offering in this letter. I am suggesting these audits and scare tactics of the Cert letters have resulted in providers altering their patients’ medically necessary care in an attempt to avoid audits by either moving the care to the hospital or requiring patients to schedule the procedure on another day. The overarching reason this has now become an audit priority to the payers is the 2005 OIG report titled Use of Modifier 25 published in November 2005 OEI-07-03-00470.
It appears the 2005 OIG report has conveyed a message to carriers to audit any provider using modifier 25 more than 50% of the time compared to their peers. The peers the auditors compare providers who use modifier 25 to, will be other providers who either see the patient on a separate day to avoid modifier 25 or are employees or contract providers of hospitals.
It is a disgrace that office-based providers who are trying to take care of patients are penalized for doing the right thing by ensuring patients are treated on the day of the evaluation. They find themselves being the target of inappropriate audits for providing excellent medical care. Whereas, those who bypass the audits by requiring the patient to come back another day or the providers who are now hospital employees appear to be exploiting the situation. This result in the following outcome: patients now make two trips to the office instead of one visit. Patients pay more than what one would expect. The latest reports suggest up to 35% more.
The concern is the peer population has changed since CMS is comparing all Medical Oncologists in hospital settings (where 80% now practice) to those physicians in private practice – who are now targeted for alleged over use of modifier 25. They represent the outliers since those Medical Oncologists in hospital settings who provide infusion services are not subject to the modifier 25 rule. Pain management physicians have given up, and the standard of care in their specialty is always to bring the patient back for an office procedure. Therefore these physicians are automatically excluded from any inappropriate audits. That is for now, but what about the future when the OIG or auditors decide to audit and charge these physicians with alleged fraud by bypassing the edits?
Another concern is each practice that claims no wrong doing, and agreed to pay large settlements, find they are under a 3 to 5 year mandatory compliance review. In their communities these practices continue to be under attack for this alleged wrong doing.
It is my professional opinion that in Oncology a separate identifiable evaluation is expected at least 85 to 95% of the time when any one of the three categories of infusion occurs. I would expect the same percentage would apply to Pain Management providers.
So I ask why require the use of modifier 25 in the first place?
Attorneys are informing me that CMS has a right to challenge the providers without considering the CMS and or AMA policy that created the coding using the bottom up methodology, and Congress mandate that the coding of Oncology be changed. CMS and contract auditors are taking the position of vagueness in the rules surrounding “ separate identifiable” to audit and demand back payments knowing the process of appeal is costly and requires huge resources to overcome these inappropriate audits.
This is a serious concern that the medical community appears to now be altering medical care based on a coding policy. This is resulting in more trips to the doctor’s office and overall higher cost to the health care system. Please give a highest priority to resolving this concern. I am offering specific information, and I am available to meet with representatives of the AMA and specialty societies to offer additional specific information that supports this concern.