ASK THE EXPERT: Replacing Modifier 59

QUESTION? What's with the new modifiers that replace modifier 59? Will they allow me to be paid for 97140, manual therapy, when done with chiropractic manipulation?

ANSWER:Yes, there are 4 new modifiers for 2015 that are to replace and more clearly identify subsets of modifier 59. The effective date is January 1, 2015 with an implementation date January 5, 2015. Modifier 59 is used to indicate a “distinct procedural service” and these new modifiers further delineate the distinct nature of the service.

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

Currently, the use the -59 modifier is to indicate that a code represents a service that is separate and distinct from another service with which it would usually be considered to be bundled. Because it can be so broadly applied, some providers incorrectly consider it to be the “modifier to use to bypass National Correct Coding Initiative (NCCI)”; it is the most widely used modifier. It is also associated with considerable abuse and high levels of manual audit activity, leading to reviews, appeals and even civil fraud and abuse cases.
Modifier 59 has been prominent in chiropractic since the update of CPT code, 97250 myofascial release, to 97140 manual therapy in 1999. As I am sure you are aware manual therapy 97140, to be separately reimbursed from chiropractic manipulation must be performed to a region not being manipulated on the same visit. Regardless of the type of manual therapy when done in same region as chiropractic manipulation the services are considered bundled into the manipulation service.

Often however providers will bill 97140 with modifier 59 when the services were not performed on separate anatomic region allowing improper reimbursement for the 97140 service. Aetna indicated improper use of 59 following their investigative audits where they found that 90 percent of the time that modifier 59 was used; manual therapy was performed in the same region as the CMT. They also found very poor or lack of documentation where no specificity was indicated to establish protocol for separate reimbursement. As a consequence Aetna began to not pay for 97140 with chiropractic manipulation regardless of the modifier use. However, they did relent to some extent and began to pay chiropractors for 97140 services when additional documentation was supplied to not only include use of modifier 59 but that medical necessity and separate regions were established in the medical record. This of course required considerably more work by the provider by requiring additional clinical information on the service.

For instance under certain circumstances, it may be appropriate to additionally report CMT codes in addition to code 97140. For example, a patient has severe injuries from an auto accident with a neck injury that contraindicates CMT in the neck region. Therefore, the provider performs manual therapy techniques as described by code 97140 to the neck region and CMT to the lumbar region. As separate body regions are addressed, it would be appropriate in this instance to report both codes 97140 and 98940. In this example, the modifier -XS should be appended to indicate that a distinct procedural service was provided to a separate anatomical site.

CMS will continue to recognize the -59 modifier, but note per the instructions of Current Procedural Terminology (CPT) state that the -59 modifier should not be used when a more descriptive modifier is available. These codes will replace the use of modifier 59 where applicable. The use of 59 will likely result in greater audits, denials and requests for information for payment and therefore better to use the more detailed X(EPSU) modifier when appropriate.
This is particularly helpful considering the reimbursement policies of Aetna and United Health Care (Optum Health) which both specifically audit and request details for use of the 59 modifier when used with chiropractic manipulation with manual therapy.