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Use of the "AT" Modifier with Medicare.

In September, 2004 CMS released Change Release (CR) #3449 as a full replacement for CR 3063 on the use and impact of the “Acute Treatment” (AT) modifier on claims for Chiropractic Manipulations under HCPCS codes 98940, 98941 or 98942, on or after October 1, 2004.

The bottom line of this release, like those before it, is that if you do not report the “AT” modifier with the code, the service will be considered maintenance chiropractic therapy and denied as not medically reasonable or necessary under Medicare’s benefit policies.

It appears from the number of inquires we still have from our members and many people from our affiliate organizations, that some so called “consultants” are using this requirement and “old myths” to convince their clients that they must “be creative” or suffer the 12 treatments per year limit that some people believe is the maximum Medicare covers.

First, let me dispel this 12-visit myth.  There is no written “rule” that limits a patient’s chiropractic visits to 12 per year.  In fact several carriers have even taken the time to publish articles [1] that specifically deny that this limit exists and clearly states that the coverage is based on medical necessity of treatment in relationship to the “normal” associated with the condition.   All Medicare carriers use various guidelines to set “frequency parameters” but those parameters are not frequency “limitations” that result in automatic denials.  These “condition based” frequency parameters are, however, often used as a plateau that flags the case for medical review to insure the necessity of continued treatment. 

 Some carriers do establish “frequency limits” by local coverage determinations but still recognize that while some “acute” problems resolve quite quickly, others, such as severe strain/sprains, may require three (3) months of care.  Likewise even longer care may for chronic joint conditions where joints have already “set” and fibrotic tissue has developed.   If the doctor has done his or her job on ALL documentation and establishes, by revisions of the treatment plan, goals that indicate additional clinical improvement is fully expected within a “reasonable and normally predictable” period of time, the carrier is likely to cover the balance of the plan.  The new Medicare regulations clearly provide for these circumstances in their revisions to the Medicare Benefit Policy Manual.[2] 

Carriers also recognize a “new injury” that happens during the current course of treatment.  Naturally, each new condition should be documented with a “new” initial evaluation and therapy adjusted to include treatment for the additional complaint.  (ie: billing 98940 and going to 98941 with the additional diagnosis added to the claim).  As the first condition is resolved, it should be deleted from the diagnosis list and therapy should then be representative of the remaining problem. (ie: back to 98940) 

The “AT” modifier is not new.  It has been a part of the HCPCS modifier system for many years.  It’s mandatory use was implemented based on the 2003 “Improper Medicare Fee For Service Payments” report that indicated chiropractors filed claims incorrectly almost 1/3 of the time.  The report stated that regardless of the “actual intent” behind these billings it still represents the highest provider error rate in Medicare and a method must be instituted to indicate on each claim submitted which claims are for active/corrective therapy and which are for maintenance.  Since the “AT” modifier already existed, its mandatory use in reporting was the logical route to compliance.

The use of the AT modifier is left to the practitioner’s judgment and whether you believe that the care you have rendered is active treatment or maintenance therapy.  The final determination however is going to be based on how well your “documentation” convinces the third party reviewer that it is “corrective” since your “personal input” will not be solicited after the documented facts.  I consistently confront clients who “keep their rationalizations” in their heads and try to justify payment when they did not put that rationale in the case files.  My response is always “If that was your expectation, why wasn’t it your stated goal?”  Likewise, auditors do not want to hear debate the “what ifs” of a case.  The fact that your belief that we are dealing with a silver-crested, winged aviate waterfowl, will not normally result in our determination that it is, in fact, a “Duck”.  Your simple, yet critical rule for documentation is that the record must be created and maintained in a manner that would survive its’ creator and should clearly state not only what you did and what you want to do but also “why”.  Formal progress evaluations are a must and need to be much more detailed than your daily notes.  One should use the formal progress evaluations as a way to clearly document the patient’s current status, improvement and expected progress and benefit from continued care.  Treatment plans should be revised to meet the remaining challenges and goals clearly defined.

We tell our members and clients to view what is considered maintenance therapy rather than try to justify that type of therapy as active.  Medicare’s recent revisions under transmittal 18[3] make this matter quite clear.

Maintenance therapy includes services that seek to prevent disease, promote health and prolong and enhance the quality of life, or maintain or prevent deterioration of a chronic condition.  When further clinical improvement cannot reasonably be expected from continuous ongoing care, and the chiropractic treatment becomes supportive rather than corrective in nature, the treatment is then considered maintenance therapy.

 While I completely detest this definition since it is the “accepted goal” of preventive and allopathic medicine, we must live with it for now. 

Most spinal joint problems fall into either the acute or chronic category. 

For Medicare purposes, acute manipulative treatment is for a new injury and is expected to result in improvement or arrest of progression of the patient’s condition. 

Chronic conditions are when the patient’s condition is not expected to “significantly” improve or be resolved with further treatment but where the therapy can be reasonably expected to result in “functional improvement”.  From an auditor’s prospective, that care would pass to maintenance when the clinical status has lacked any additional improvement over a reasonable period and the patient appears to be stabilized at maximum expected improvement.  Once the plateau is reached, the patient needs to be referred for medical intervention, discharged on a home exercise program under MMI and/ or placed on a maintenance therapy protocol on a cash pay basis.

What do you need to do? 

First, make sure your billing staff is aware that they must add the AT modifier to HCPCS codes 98940, 98941 and 98942 when your clinical documentation indicates that your care is consistent with the normal interpretation of active/corrective treatment.

Next, make sure that your billing staff is aware of any local coverage determinations imposed by your carrier, for these services that might limit the frequency or circumstances under which you will be paid.

You must be aware that your carrier can “auto-deny” claims that exceed the frequency limits of reasonable and necessary services “as specified” in their LCD.  You must make sure that you know what those limits are and observe them.  Even if the contactors’ LCD does not specify frequencies that define the limits, they may still deny after review.    

Last, but certainly not least, you should obtain an Advance Beneficiary Notice (ABN) from the patient as these limits are approached and begin billing with the “GA” modifier in addition to the “AT” modifier on your claims.

We wish to caution everyone that the mandatory use of the AT modifier was implemented based on the 2003 “Improper Medicare Fee For Service Payments” report that indicated chiropractors filed claims incorrectly almost 1/3 of the time and regardless of the “actual intent” behind these billings it still represents the highest provider error rate in Medicare. Using the “AT” reporting method to indicate on each claim submitted which claims are for active/corrective therapy and which are for maintenance is to curtail this inappropriate billing.  Adding the AT modifier to claims where you “know” or “should know” that your therapy is not active/corrective WILL put your practice at risk on review.

Fraud, as defined by Federal Regulation (42CFR455.2) , is an intentional deception or misrepresentation that someone makes, knowing it is false, that could result in the payment of unauthorized benefits. A scheme does not have to be successful to be considered fraudulent.

Abuse involves actions that are inconsistent with sound medical, business, or fiscal practices. Abuse, directly or indirectly, results in higher costs to the healthcare program through improper payments that are not medically necessary.

The primary difference between fraud and abuse is a person's intent. That is, did they know they were committing a crime? 

In either case, the key component is that the perpetrator knew or should have known that the act was improper or inconsistent with sound practices.

Fraud and abuse can take many forms. Some common forms may include, but are not limited to:

·         Billing for services or supplies never provided.

·         Misrepresenting the services rendered.  (miscoding the actual service and/or misuse of modifiers to bypass NCCI edits)

·         Misrepresenting the diagnosis to justify payment for services.

·         Soliciting, offering or receiving a kickback, bribe or rebate.

·         Secret, unlawful agreements between a supplier, beneficiary, and/or other healthcare provider that results in higher costs or charges to a carrier.

·         Deliberately applying for more than one payment for the same service.

·         Unlawfully completing a Certificate of Medical Necessity.

·         Falsifying documents.

·         Misrepresenting the place of service.

·         Presents or causes to be presented claims to a Federal health care program that the person knows or should know is for an item or service that was not provided as claimed or is false or fraudulent. 42 U.S.C. § 1320a-7a(a)(1)(A) and (B).

·         Violates the anti-kickback statute (42 U.S.C. § 1320a-7b(b)) by knowingly and willfully: (1) offering or paying remuneration to induce the referral of Federal health care program business; or (2) soliciting or receiving remuneration in return for the referral of Federal health care program business. 42 U.S.C. § 1320a-7a(a)(7).

·         Presents or causes to be presented a claim that the person knows or should know is for a service for which payment may not be made under 42 U.S.C. § 1395nn, the physician self-referral or "Stark" law. 42 U.S.C. § 1395nn(g)(3).

The proof of the allegations is the existence of the claims regardless of the payment or denial.  The scheme does not need to be successful to be considered fraudulent.

Use your head and don’t listen to consultants who subscribe to the “your too small for the OIG to bother with”.  If you abuse the “AT”, active/corrective therapy provisions, you may find yourself part of the growing number of “small” practitioners who have received “correctional therapy” courtesy of the United States Attorney General.

[1] Medicare coverage database articles A15578, 1/02/03; A13747, 3/01/03
[2] MBP Chapter 15 Section 240.1.5 (revision 18, issued 9-3-04)  
[3] MBP Chapter 15, section 240.1.3 (A) (Rev. 18.  Issued 9-3-2004, effective 10-1-2004


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