Medicare has been sending comparative billing reports (CBRs) for some time. One recent CBR examined the use of modifier -25 by nurse practitioners (incidentally, if you receive an interesting CBR or other communication from Medicare or any other payer, please consider sending me a copy). 

There is a LOT to discuss in this report, but before focusing on its specifics, it is helpful to consider these reports and data mining generally. I don’t believe in bumper stickers, but if I did, mine would read “anomalies happen.” There is an implicit suggestion in these reports that being “above average” is problematic. The whole goal of these reports is to scare people into lowering their coding. 

What percentage of the nurse practitioners (NPs) in the country has above-average use of modifier -25? The answer, of course, is 50 percent. What if every nurse in the country cut their use of the modifier by 75 percent? How many nurse practitioners would be above average then? Not only would it still be 50 percent, but also it would be the same 50 percent. Being above average is not by itself a problem. When you encounter a professional who is an outlier, your goal should be to determine whether the professional’s actions are defensible. Someone who uses modifier -25 less than most others may be using it incorrectly. Yet the fact that someone is above average isn’t proof of a problem, and the fact that someone is below average doesn’t mean they are coding accurately. The question is whether their use of the modifier is appropriate.

This particular report examined all NPs. While this may be speculation, it is likely that that use of the -25 modifier is not distributed evenly among all specialties. For example, it seems probable that NPs with a focus on oncology, as one NP in particular had, are more likely to use modifier -25 than other specialties. A medically necessary E&M on the day of an infusion will merit a -25. Because the Centers for Medicare & Medicaid Services (CMS) doesn’t track this specialty the same way it tracks physicians, this report was not truly a comparison of NP “peers.” 

The CBR contained several calculations that were puzzling. One calculation converted E&M codes to time, and then compared an NP’s total time for encounters for which modifier -25 was used to the total time spent by other NPs on encounters when modifier -25 was used. The poor writing in the CBR made it difficult to confirm exactly how this calculation was done, because it included a formula involving “total weighted value by modifier designation/total number of visits by modifier designation.” But it appears that the CBR was using CPT® typical times. If the NP used modifier -25 on four 99213s and two 99214s, the NP would have a total time of one hour and 50 minutes, because each 99213 is presumed to take 15 minutes (thus four are deemed to take an hour, and each 99214 is deemed to be 25 minutes, adding 50 more minutes). They would divide this 110 minutes by six visits to yield an average of 18 minutes per visit. What should a recipient conclude from this calculation? The only obvious lesson is that the author is able to do math. 

In many situations there isn’t much value in converting the codes to time because the actual time of an encounter can be so different from the typical time. Looking in a patient’s ears and throat and prescribing antibiotics can take about three minutes but still qualify as a 99213. There are some situations in which there are questions about a professional’s productivity where time can be a useful data point, but analyzing RVUs seems to be a better strategy than focusing on time. Even if there are situations in which knowing total time is useful, it doesn’t seem at all relevant to determining whether it was appropriate to use modifier -25. Whether -25 encounters are the core of the professional’s day or a periodic occurrence doesn’t offer much insight into whether E&M services were separate and identifiable from the procedure. It may be theoretically possible to argue that if substantial time is spent on the E&M, this suggests that the visit really was separate and identifiable. But it is perfectly appropriate to have a 99212 that is separate and identifiable, so that argument is quite weak. 

So, what do you do if you get one of these CBRs? The same thing you would do if you hadn’t received one: Know how to use modifier -25, and make sure you do so properly. That isn’t always easy. The instructions on use of -25 are far from clear. I have struggled to provide practical advice, particularly in the context of a 99211 in a Coumadin Clinic. I recommend that you bill an E&M with -25 when the E&M is something you would do even if the procedure were not occurring. That would include situations in which you decide to perform the procedure because of the visit.

The CBR, by itself, isn’t a reason to change anything.

About the Author

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David assists clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Monday and is a member of the RACmonitor editorial board.

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