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Modifier 59 – When to Use and Not to Use

Monday, April 22, 2019
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Modifier 59 is used in cases where it may be necessary to indicate that a procedure or service is distinct or independent from other non-Evaluation and Management (E/M) services performed on the same day to the same patient. Modifier 59 is considered one of the most used modifiers by coders.

Use of Modifier 59 has been catching the eye of the regulators for many years. The reason is that use of this modifier will unbundle procedures that are normally bundled and therefore increase reimbursement from the Medicare Outpatient Prospective Payment System.  A recent settlement surrounding the improper use of the 59 modifier, investigated by the Inspector General of Health and Human Services and the U.S. Department of Labor, resulted in a Pennsylvania health system and orthopedic surgeon agreeing to pay federal authorities $12.5 million dollars ($11.25 million from the health system and $1.5 million from the surgeon) for unbundling global payments from 2007 through 2014

According to an article published by CMS (https://www.cms.gov/Medicare/Coding/NationalCorrectCodInitEd/downloads/modifier59.pdf ) these are situations where the use of Modifier 59 is appropriate:

  • Can be used for different anatomic sites during the same encounter only when procedures which are not ordinarily performed or encountered on the same day are performed on different organs, or different anatomic regions, or in limited situations on different, non-contiguous lesions in different anatomic regions of the same organ.
  • Can be is used when the procedures are performed in different encounters on the same day.
  • Can be used for two services described by timed codes provided during the same encounter only when they are performed sequentially.
  • Can be used for a diagnostic procedure which precedes a therapeutic procedure only when the diagnostic procedure is the basis for performing the therapeutic procedure
  • Can be used for a diagnostic procedure which occurs subsequent to a completed therapeutic procedure only when the diagnostic procedure is not a common, expected, or necessary follow-up to the therapeutic procedure.

Here are a couple of examples from the American Academy of Professional Coders (AAPC):

Example #1: CPT code 38221 (Diagnostic bone marrow biopsy) and CPT code 38220 (Diagnostic bone marrow, aspiration) includes two distinct procedures when performed at separate anatomic sites (e.g., contralateral iliac bones) or separate patient encounters. In these circumstances, it would be acceptable to use modifier 59. However, if both 38221 and 38220 are performed on the same iliac bone at the same patient encounter which is the usual practice, modifier 59 shall NOT be used. Although CMS does not allow separate payment for CPT code 38220 with CPT code 38221 when bone marrow aspiration and biopsy are performed on the same iliac bone at a single patient encounter, a physician may report CPT code 38222 (Diagnostic bone marrow; biopsy(ies) and aspiration(s)).

Example #2: CPT code 11055 (Paring or cutting of benign hyperkeratotic lesion …) and CPT code 11720 (Debridement of nail(s) by any method; 1 to 5) may be bypassed with modifier 59 only if the paring/cutting of a benign hyperkeratotic lesion is performed on a different digit (e.g., toe) than one that has nail debridement. Modifier 59 shall not be used to bypass the edit if the two procedures are performed on the same digit.

Modifier 59 should not be appended to an E/M service such as an established office visit.  In addition, it should not be used if there is an established modifier other than Modifier 59 that best explains the circumstances. Finally, documentation must be able to support the use of the 59 modifier.

Monitoring the use of Modifier 59 should be managed as part of your organization’s compliance plan program.

For further information and how we can assist, please contact:

Terry Lang, FHFMA, CPA
Senior Manager
tlang@fcc-cpa.com

Sheri Stevenson, CPC, NCP
Senior Manager
sstevenson@fcc-cpa.com