What changes to the –59 modifier mean for you

Over the past month or so, we’ve received a number of questions pertaining to the change in Medicare rules regarding the –59 modifier. Although in a previous column we discussed this change in relation to kidney stones specifically (“How to bill for a separate stone in the same kidney,” January 2013, page 32), we feel the interest generated by this change warrants a deeper dive into this subject.

Medicare published an article last fall drawing attention to clarifying rules directed to the use of the –59 modifier that was included in the National Correct Coding Initiative (NCCI) Policy Manual. The intent of the article was to clarify that the –59 modifier could not be used to indicate a “distinct” or separate procedure. Medicare Learning Network (MLN) published SE0715, a special edition article provided by the Centers for Medicare & Medicaid Services (CMS) to clarify the proper use of modifier –59. This article provided us with additional details, including the NCCI edits and intended uses of the –59 modifier. As we’re sure you are aware, CMS sets the policy and a subcontractor interprets those policies and develops the policy manual and edits for the NCCI.

“One of the misuses of modifier ‘–59’ is related to the portion of the definition of modifier ‘–59’ allowing its use to describe ‘different procedure or surgery,’ ” according to MLN article SE0715 and the NCCI Policy Manual. “The code descriptors of the two codes of a code pair edit usually represent different procedures or surgeries. The related NCCI edit indicates that the two procedures/surgeries cannot be reported together if performed at the same anatomic site and same patient encounter.”

To put that in plain English, if two procedures are performed on the same lesion and those procedures are bundled in the NCCI edits, then you cannot charge for the lesser procedure by attaching the –59 modifier.

The article and manual go on to say, “The provider cannot use modifier –59 for such an edit based on the two codes being different procedures/surgeries. However, if the two procedures/surgeries are performed at separate anatomic sites or at separate patient encounters on the same date of service, modifier –59 may be appended to indicate that they are different procedures/surgeries on that date of service.”

In the process, the NCCI manual provided clarification on the definition of different anatomic sites. This clarification was reconfirmed with identical language in the MLN article.

The NCCI Policy Manual also states, “From an NCCI perspective, the definition of different anatomic sites includes different organs or different lesions in the same organ. However, it does not include treatment of contiguous structures of the same organ.”

We’re sure that many of you are asking, does this mean I can charge for treating two or more bladder tumors since they are separate lesions in the same organ? Unfortunately, the answer is no. The CPT definition of transurethral resection of bladder tumors specifically states “resection of tumor(s),” which means that you can only charge it once even if you have multiple tumors, for example, 52234 (“Cystourethroscopy, with fulguration [including cryosurgery or laser surgery] and/or resection of; SMALL bladder tumor[s] [0.5 up to 2.0 cm]).” (Underlining has been added for emphasis.)

Are stones lesions?

In the case of kidney stones, the NCCI Policy Manual quote regarding “contiguous structures” should give us the ammunition we need to charge and get paid for the treatment of two stones located in two separate areas of the kidney, ureter, etc. A stone should definitely be considered a lesion, and this clarification of the use of the –59 modifier should be interpreted as confirmation that the treatment of two separate stones (lesions) should be paid for if treated, regardless of the treatment modality used.

However, we have been notified by the leadership of the AUA Coding and Reimbursement Committee that stones are not to be considered lesions, according to discussions they have had with the subcontractor that edits the NCCI. After a thorough review of all the issues, the AUA plans to provide CMS with the above interpretation of the appropriate use of the –59 modifier in urology, to include the fact that stones are lesions as defined by the NCCI’s policy manual, and ask for clarification.

Recall that multiple payment rules for endoscopy procedures in the same family will result in only an incremental increase in overall reimbursement.

In answering the original question regarding this modifier in January, we suggested that if the same procedure was performed on both stones, in addition to the –59 modifier, you should also add the –76 modifier, which would indicate to the computer that it was not a duplicate claim. Not all payers will accept modifier –76 and most carriers consider –76 informational only, so list modifier –59 first and check with your carrier regarding acceptance of modifier –76.

If you decide to bill for two stones in the same kidney, we would strongly recommend that you have imaging confirmation that they are two separate stones located in separate parts of the kidney (not contiguous). Proceed with caution and stay tuned.