Retired OIG Special Agent and Advize’s Director of Litigation & FWA Support will be stepping in each week to examine current fraud trends from the lens of an investigator. Stay tuned for weekly insights, updates, and information on healthcare’s most expensive crimes.
Modifier 25. It has been the bane of existence for fraud, waste and abuse investigators since its inception. In full disclosure, I am not a Certified Professional Coder (CPC), nor do I purport to be an expert in coding. I was, however, and continue to be, a professional healthcare fraud investigator, and when I hear about the use of Modifier 25, I immediately am brought to thoughts of inappropriate use of the code.
In 2005, the OIG issued a report on the abuses of Modifier 25. 15 years later, we can still point to instances where this code is highly abused. Unfortunately, as with many investigations that involve the use of coding in the fraud with respect to modifiers and upcoding, these cases can result in civil settlements. I am often asked why certain matters are criminally prosecuted, while others, like the abuse of Modifier 25, is adjudicated civilly. The number one thing to always keep in mind that prosecutors and investigators are always thinking in terms of trial and not only jury appeal, but jury understanding. Inevitably in a situation where a provider decides to take the case to trial, the Medicare program will be on trial. The difficulties in understanding the policies, rules and at times, the vague definitions of codes will undoubtedly be the subject of the defense.
I had several cases in my OIG career where the use of Modifier 25 was implicated. Thankfully, there were other issues involved in the investigation, where the Modifier 25 part of the case was able to be rolled into a global settlement and treated civilly. Had the cases just relied upon the misuse or abuse of Modifier 25, the cases would likely only have been civil, or declined entirely by the prosecutor. The key part of this modifier is that it gives a provider the ability to circumvent edits to deny services that would not be separately payable. Where providers go awry is when this modifier is appended to every evaluation and management code for every patient. Data does not lie; it may give a false positive at times, but that does not mean it was wrong in its findings.
I found the misuse of this modifier mostly with podiatrists who sought to increase reimbursement for Medicare covered services by adding an evaluation and management code to the podiatry codes (typically debridement and other related routine footcare codes that are covered under very specific circumstances). By appending the evaluation and management code with the Modifier 25, a provider can see a much larger reimbursement than would otherwise have been afforded to the provider in the absence of the evaluation and management.
The fraud with this modifier is still a real thing. Unscrupulous providers do not reinvent the fraud, waste and abuse wheel; they just find new ways to perpetuate the scheme. OIG made an issue of the misuse of the modifier, and here we are, 15 years later, and we are still discussing it.
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