Episode 8: Complex Coding, Complicated Compliance

Episode Transcript

CJ: Welcome everybody to another episode of Compliance Conversations, and today we are talking with a wonderful guest, Brenden O’Niel, who is a Senior Consultant with Intermountain Healthcare, he works in their professional coding and reimbursement department. Welcome Brenden.

Brenden: Thanks CJ, thanks for having me.

CJ: Glad to have you. Brenden is an expert in the neurosurgery coding, and I think that’s a really interesting topic, and before we kind of go there Brenden, just take a minute and tell us just a minute about yourself. I see you’re a JD, and that might be an interesting background to explain to our listeners how you ended up doing coding and compliance.

Brenden: Yeah, it kind of happened on accident, I had finished up law school in Arizona where I’m from and I moved up to Utah to take the bar, and I kind of needed a job to do in the meantime while I was studying for and taking the bar. So, I had a friend that worked for intermountain and loved it as a company so I figured I would apply, so I ended up applying for our professional coding and reimbursement department, mainly dealing with medical coding, but compliance issues as well. And I ended up passing the bar and decided to stay because I liked the compliance things so much. I think it’s interesting as I transitioned my career path to medical industry, it was interesting to me how similar it was, because in the legal world as an attorney you have this world in which you live of laws and statutes and regulations, and as an attorney your job is basically to apply those laws and statutes and regulations to specific instances so you can determine the correct path moving forward. And the longer I’ve been doing this and the world that we live in this compliance and coding and billing world, it’s really the same. Because we’ve got rules, and we’ve got guidelines that we need to apply, and really the in and out of the day is doing the research and finding out which rules and guidelines apply, and giving correct advice for how to move forward from there. So, I’ve found that it’s a great fit for me.

CJ: And how long have you been doing this kind of work.

Brenden: It’s about two years now with Intermountain.

CJ: Great, so I’m glad that we have some time to talk to you. And to our listeners, Brenden has some experience with neurosurgery as I mentioned, and I wanted to jump right in with an example of where coding and coding edits and CPT codes and how payors may look at those and whether they are going to pay and not pay, and Medicare and how they could potentially flex their muscle. We have a really interesting kind of topic and it has to do with laminectomies, right?

Brenden: That’s right.

CJ: So, I’m going to have you kind of introduce what that issue was, or is.

Brenden: So, pre-2015 if you were neurosurgeon or orthopedic spine surgeon, one of the procedures you do the most is a lumbar fusion, in the lumbar region of the spine where you fuse two vertebral segments together. And in order to do that fusion you have got to perform some sort of laminectomy to get to the area you needed to get to, which is a removing of the bone over the spinal cord. So before 2015 when providers would perform an inner body fusion, they would do a laminectomy as well, and according to the CPT guidelines at the time, according to the wording, in addition to the fusion, an laminectomy was included if you only did enough of a laminectomy to prepare the disc space for the fusion procedure, but if you did a laminectomy for a decompression you could bill for a laminectomy code separately.

CJ: And so, decompression is where there is actual pressure on the spine, and the laminectomy is also serving somewhat therapeutic purpose as opposed to just preparation for the fusion.

Brenden: That’s exactly right. So, it was very common for them to be in there because one of the main reason for a spinal fusion surgery is stenosis, which is the pressure on the spinal column or the nerve root endings. So, it is very common for physicians to perform the laminectomy for decompression in addition to the inner body fusion code. So, you would see this all the time. You would CPT code 22633 for the fusion billed in addition to the 63047 for the laminectomy, and the laminectomy was secondary to the fusion but appropriate to bill according to the CPT guidelines because in the code itself, it says if it’s done for decompression bill for it separately. What happened in 2015 Medicare released a change to their NCCI policy manual, and in essence it says, CMS payment policy no longer allows separate payment for CPT codes for the decompression and the inner body fusion. So, in essence they are saying now you can only bill for the diffusion, and you can no longer bill for the decompression in addition to it. Providers were not happy with this, and they wanted to push back, they thought that this was wrong, because there is additional work that goes into doing that laminectomy in addition to fusion. You’ve got to remove more bone, you’ve got to spend more time cleaning up the nerve root endings to reduce that pressure. So there was a physician Dr. Rosen, who worked with the American Association of Neurological surgeons and the Congress of Neurological surgeons and he wrote a letter, with the backing of many neuro surgeons and orthopedic spine surgeons that in essence says CMS we think you got this wrong, we want you to re-consider this edit, because in the letter they explained the amount of work that goes into doing these decompression laminectomy in addition to the fusion, and they also said CMS, we think you were influenced by this article that was published in a NASS spine line journal, NAS is the North American Spine Society. So, they had actually published an incorrect article in their journal, where a physician was saying if you’re doing the inner body fusion, the decompression, you’re really doing the decompression as part of that, and it shouldn’t be billed separately. The next article the retracted that and they corrected it, and they said no, this was wrong, you can bill for the laminectomy separately. So, Dr. Rosen actually points to that article in his letter, and he says this may have been an influence in your decision to change this edit, but they retracted it, it was wrong. So, they started this appeals process in February of 2015.

CJ: An appeal to change the edit.

Brenden: Back to the way it was, because now, as they pointed it, physicians were not being able to be paid for this work they were doing. CMS, or the person responsible for the edit responded with the edits, responded the next day. They said okay we’ll take this under consideration, and we’ll let you know in November when we release the edits for next year. So that created a problem though, so now you have…

CJ: Yeah, what do you do in the meantime.

Brenden: You’ve got a significant amount of time where you have physicians who are in this limbo, where they think they should be able to bill for the CPT code for the decompression, but CMS for the time being has said no. And that was my experience during that time, and that was a good question, what do you advise your physicians to do.

CJ: And was that laminectomy ½ of the reimbursement, 1/3? I mean what portion, it was probably a lot of money.

Brenden: It was a lot of money, the RVU value, the work value, for the fusion itself is 27 RVU roughly, 27.75, the laminectomy portion of that is 15.37 in addition to the 27.74, so it’s about ½.

CJ: It’s a big cut.

Brenden: Yeah, on a claim, I would say a dollar amount for that laminectomy would be $3000 when you send the claim out the door.

CJ: And any estimates on what percentage of inner body fusions has a separately reportable laminectomy. Is it like all of them, is it like 90% of them?

Brenden: I would say it was most. I would say a traditional, if you are a spine surgeon, and you’re doing this code a lot, the fusion a lot, you’d probably do the inner body fusion 80-100 times a year, and I’d say probably 50 to 80 of those cases depending, would have included the laminectomy.

CJ: So, it’s very, yeah, so they took something that was almost done all the time with the fusion and said you can’t report it separately now.

Brenden: That’s right. And CMS kind of has a point, because there is this laminectomy procedure that is worth a lot of money when done alone, and when done with combination with another procedure, you kind of have a point that maybe this shouldn’t be paid separately.

CJ: But did they increase the RVU value of the fusion when they did that. It doesn’t sound like they did, it sounds like it was an edit decision, not something that was in the federal register for the physician fee schedule RVU’s to change.

Brenden: That’s right, now you just have a cut off, essentially a third amount of money in this procedure that is suddenly gone, that’s not made up through the RVU of the other procedure. And so, in that limbo period the question was, then how do you start billing then. If physicians are like, this is wrong, this will be over turned, and assuming that it will be, do they bill it in the meantime.

CJ: And have it denied or something, and then have it appealed after the fact.

Brenden: Or if they don’t bill it, and they play it safe and just follow the Medicare guidelines, now they have almost a year of reimbursement that they missed out on if CMS changes its mind, and it’s a lot of reimbursement. Say that they do it on average once a week, you have fifty times they are doing it a year, that’s around $150,000 a year of reimbursement for this procedure alone, so you’re talking a lot of money. But because it’s so much money the risk is incredibly high, because if they are doing it incorrectly for any period of time and they end up having to pay back money, now you’re talking hundreds of thousands of dollars depending on how long and how many they coded.

CJ: Oh, that is interesting.

Brenden: So, it’s high stakes, and the solution, in my opinion was to play it safe. If CMS makes a change, even if you think they may change their mind later, you follow a CMS guidelines for CMS. And for other payors who still follow CPT guidelines, unless other payers have other guidance out there saying, you know, we’re following CPT on this, continue to bill as you were.

CJ: And, are most of these patients, I imagine they are older, but they might not meet, but they might not all be Medicare, I mean you might have had a lot of patients that were not Medicare patients.

Brenden: Yeah, and that’s a good point, and for them Medicare wants to be more strict on their interpretation of these rules, but CPT has not said anything, continue to follow CPT, and that would be ethical and okay, as long as CPT has the rules that they have in place. So, we fast forward to later in 2015, CMS comes out with a decision on a decision of this appeal.

CJ: In November, was it…

Brenden: they actually came out a little early.

CJ: So at least they came early, that’s good.

Brenden: So on September first they responded to Dr. Rosen’s article for this appeal. In essence they said that CMS does not plan to make a change to these edits. CMS continues to believe that these coding combinations are not appropriate, however, and this is the interesting part, CMS says that CMS thinks that when you might consider an alternative approach CMS to this issue through the CPT editorial panel. For example, you might consider proposing an addon code for use with the arthrodesis codes that would describe additional decompression when performed.

CJ: Oh boy.

Brenden: So in essence, CMS is saying we don’t want to pay you all of the RVU’s for the existing code right now. They are kind of hinting that…

CJ: Yeah, they are saying if you get CPT to create a new code, we’ll assign RVU’s to it, but beware they are not going to be the 15 or 17 you said that it was, it’s probably going to be 2, 3, 5, 6 area.

Brenden: That’s right, so in a way they are suggesting that you should be paid something for this, but we’re not going to pay you what we were in the past.

CJ: yeah, so, rather than just lower… now I’m going to harp on CMS for a second, and this is just one perspective, but rather than just lower the RVU’s of the existing laminectomy code, they just kind of flat out got rid of it, and now they are saying resubmit and we’ll see what happens.

Brenden: Yeah, and it’s an interesting relationship that CMS has with CPT as well. Because they are saying we’re not going to take any action here, but if you’d like, you could propose a new code that would appropriately compensate you for the work done here. So that was CMS’s response, so at that point it became clear, no more billing these codes to CMS, it’s set in stone.

CJ: And that came out as a published letter, or it came out in NCCI or…

Brenden: It was a published letter from the National Correct Coding Initiative, basically saying we are not going to change our NCCI edits, and then they released the new edits in November and nothing changed. So, the fallout from that then created this schism from billing, and I think it’s important to talk about, when you’re billing to payors they will often have different guidelines, and it makes it difficult for physicians to stay on top of things like this, because if a physician, first of all had not been paying attention to these changes they may not be aware that any of these changes happened and they may be starting to overbill Medicare because they are no longer able to bill this code. But the other issue too is then now physicians have to start paying attention to who they are billing, and many do already, but in this case specifically, if a spine surgeon had not been concerned with this in the past, now their billing team, or their coding, when billing Medicare we do not bill this way anymore, if they would like to continue to bill the CPT they would inform their coders, their staff, or choose it themselves to continue to bill according to CPT guidelines.

CJ: Now when the NCCI edits came out did it have a 0 or 1, meaning could you bypass it with an edit, or excuse me, with a modifier.

Brenden: Yes, you could still bypass it with a modifier.

CJ: So that would be another area for risk, if somebody said well I’m still going to get paid for this thing, and I’m going to put the 59 modifier on there, or whatever modifier would get it bypassed, that would add some potential risk.

Brenden: It would, and the claim wouldn’t be denied, and they’d be paid for the claim, but if they had done it on the same inner space it was not billable, and the 59 would imply they had done it on a different inner space. So, it started to create this confusion for physicians, now they have to start billing separately to different payors and now there is starting to be risk involved. And I think that brings up a good point about physicians needing to stay on top of these changes, and the codes we’re talking about are such a high dollar value that the mistake, the implications for mistakes here are huge. If a physician isn’t aware of this issue now, they would want to be, because we’re 2 years out from that time, and if they’ve been billing this to Medicare incorrectly in that time, they’re potential racking up the amount they would need to pay back if an audit is performed on them. And I think another interesting thing that happened in this case is the following year. So a year after Medicare, NCCI, said we are not changing anything, CPT then joins the conversation, and in a CPT assistant article in October of 2016, now a year after this change, they come out and there is a question and answer part of this article they released, and one of the questions is posed to them, if you have a physician doing an inner body fusion and also doing decompression, the laminectomy for decompression, which in the past was okay in CPT. CPT came out and said that these codes cannot be reported for the same inner space. So in essence they adopted Medicare’s stance on the issue.

CJ: In a CPT assistant, so they didn’t change their guideline in the directions within that section of the codebook.

Brenden: No, so now the code still looks as if you could bill separately for the decompression, when in the CPT assistant article from CPT they are saying you can’t.

CJ: You think they would clarify it in those notes if they are going to use the CPT assistant to make that stand.

Brenden: Yeah, and if a physician isn’t aware of that article. But it changes the game, because now if CPT adopts Medicare’s stance, you should be billing that way for all payors.

CJ: That’s a great point, wow. Sorry but, that was in 2016, October?

Brenden: Yeah, so now that current stance on this issue and the advice I would have the physicians billing this way is now that we have CMS stance on the issue don’t bill these two together.

CJ: Right.

Brenden: And CPT has endorsed it saying they are not billable for the same inner space, do not bill this for all payors.

CJ: So, the only time it’s appropriate to have those two codes on a claim together would be on if it’s a different inner space.

Brenden: That’s right.

CJ: Which is probably not going to be very common.

Brenden: Yeah, it depends on the case, but not nearly as common as it was for them to bill them together.

CJ: So what I’m taking, if I’m a compliance officer, and I’ve got neurosurgeons, I would do an audit, and it seems like it would be pretty straightforward, you could run some data analytics for the code 22633 or that range of codes that represent fusions, right? Anytime a 63047 or laminectomy is reported.

Brenden: yeah that’s right.

CJ: And then check, because if they are reported together, the only way they would have gotten paid was with a 59 modifier, and then the documentation would have to support that it was a different inner body, a different inner space.

Brenden: a different inner space, that’s right. And with that 59 modifier, you know, they may be getting paid, and so there may not look like an issue, but if it was for the same inner space.

CJ: Exactly, it all comes down to the documentation at that point, that’s kind of why I’m raising for the compliance officers out there, this would be a great audit to do, it would be a very focused audit, and you’d be able to kind of pinpoint anyone who’s having issues with this.

Brenden: Yeah, it would be very easy to do, and the dollar values are so high it’s worth doing.

CJ: Wow, that’s fascinating. I’m sorry, go ahead, any other thoughts on this kind of story or topic.

Brenden: I think it just kind of emphasizes the importance of keeping track of the changes with the regulations and rules, because if you’re not, you could potentially 6 years out continue to bill the way you have been.

CJ: The thing that strikes me is that the CPT manual itself didn’t change.

Brenden: That’s right.

CJ: It’s the CPT assistant, and not everybody gets CPT assistant, that’s an additional subscription through AMA, and the CPT book itself, correct me if I’m wrong, if I’m hearing you right, would say that you’re still allowed to report a laminectomy for decompression.

Brenden: Yeah, in essence it says, yeah it says that.

CJ: And the only way you would that that is not appropriate is if you read this October 2016 CPT assistant.

Brenden: That’s right.

CJ: Wow, this is a great topic that we are bringing up then, because a lot of people are not going to know that unless they read that deep into the rules.

Brenden: Uh-hu. And it’s one that physicians honestly don’t like, because it’s such a game changer for their coding and billing, but it’s such an important one because the ramification, again, are huge if you continue to bill.

CJ: I know this is relatively recent, if that CPT assistant was October of 16, you said the CMS letter was September of 15.

Brenden: That’s right.

CJ: So, for CMS it’s been known for about a year and a half or so. Are you aware of any headlines where people have gotten hit with fines and those sorts of things? I know these take years, the lag is sometimes years.

Brenden: I have not seen anything yet, but I wouldn’t be surprised for Medicare to look at something like this as low hanging fruit.

CJ: Be easy, I could run the query right now, and there is a lot of publicly available data out there where we could run this query where Medicare has published physician names with billing data. That was new a couple years ago. So, this would be really interesting.

Brenden: It’s worth looking at.

CJ: Wow, what a great issue to raise

Brenden, apricate that. In our last few minutes here any other things that come to mind with neurosurgery. I know it’s a very specific specialty, not all, you know, their kind of a prized physician. There’s not probably a lot of them. If you have one at your hospital there might be one or two. What other things would you say are kind of key issues in the neuro surgery space, if I could ask that.

Brenden: Yeah, I would say another big change this year was to codes for the inner body cage codes. When you’re doing a fusion, you put in a cage.

CJ: Like a metal device, right?

Brenden: Yeah, to keep that inner space bulked up. They changed the codes this year, and the wording change was a little confusing. And in my role, I had a lot of physicians asking me about this change in codes. So, the former code was a 22851, and it was one code that represented all of the cages that would be used, and the new code range separated it into 3. 22853, which is your traditional inner body fusion cage code, use that for your traditional inner body fusions. 22854, which is used for corpectomies, when done in addition to an inner body fusion. And then lastly you have 22859, which is a cage you use when you’re not doing a fusion. When you’re maybe doing a spinal reconstruction without a fusion, or maybe a tumor removal where you took out some bone and you needed a cage in there to keep the space.

CJ: So, they’ve gotten more specific, they exploded from 1 general code for all cages to 3 specific depending on the scenario.

Brenden: That’s right, and the wording of the code was a little confusing, because it says that it includes with integral anterior instrumentation for device anchoring when used, and physicians were not sure if that meant that when I use anterior instrumentation can I no longer bill for that separately. And the answer to that is the anterior instrumentation only applies if it’s just to anchor the cage into the space itself. And some cases come with devise anchoring instrumentation on them. So CMS is basically saying if you’re using instrumentation to anchor the devise, don’t bill for that separately. But traditional anterior instrumentation can and should still be billed separately.

CJ: And where does that clarification come from, what you just described, was it in CPT changes, which is the annual book that they produce when there is new codes, or was it CPT assistant or was it some other clarification.

Brenden: I don’t remember exactly where we got the clarification. I think it was just looking at the text of the code itself and focusing on devise anchoring aspect of the instrumentation. But upon an initial reading it can be confusing to providers that don’t know.

CJ: Well, Brenden, thank you so much for your time and your expertise, I know that this is a very specialized area of coding, and we really appreciate your willingness to sit down with us and chat.

Brenden: Yeah, thank you, it was a pleasure.

CJ: Thank you, and to all our listeners, thanks for tuning in on another episode of Compliance Conversations, until next time.