A provider once told me that one can bill Medicare to get paid for orthotic using the KX modifier. Is this really a realistic expectation? If it is not realistic, what repercussions can one expect if one is audited? Should they immediately refund the money to their DMEPOS contractor? How does one bill their DMEPOS contractor for foot orthotics even though they are not covered? Lastly, are there any other steps you recommend?
This is a topic that has been covered innumerable times but is worth repeating, especially for the new practitioners. Fee for Service Medicare only covers foot orthotics in one set of circumstances. That is when the foot orthotic is placed into a shoe, which is attached to a leg brace. This information is in your DME MAC Orthopedic Footwear LCD.
If a practice has been billing L3000-KX (RT or LT) then Medicare will expect to see the supportive documentation in your patient’s chart.
If one is using the KX modifier and the documentation does not support the patient has a leg brace attached to the shoe that is inconsistent with the LCD. If this has been done innumerable times, even a request for one chart could trigger a massive extrapolation and request for a significant recoupment from the provider.
Medicare has an existing policy on refunding money to them for incorrect reimbursements. This has temporal elements which providers must meet and, in this case, has likely long past. As such, it is possible the provider could be hit with violations of the False Claim Act and criminal charges.
In the past these are the recommendations made to correct such errors:
- Stop billing Fee for Service Medicare for foot orthotics using the KX modifier, unless in the rare circumstance, the patient meets the LCD criteria.
- Only contact your DMEPOS contractor under the advice of legal representation.
- Allow legal counsel to correspond and work with the DMEPOS contractor and properly represent you to mitigate your damages.
There will be two other occasions when the DMEPOS contractor should be billed for foot orthotics, however, without the expectation of reimbursement.
- The patient insists Medicare be billed even though you have told them the DMEPOS contractor will not pay.
- The patient has secondary insurance or HSA which requires a rejection of payment from the DMEPOS contractor to pay for the orthotics.
In this case the L30XX should be amended with the GY (statutorily non-covered) modifier individually for both the LT and RT devices. Billing the claim without a KX (if covered) or GY (Not covered) should result in a claim that is not processable. Hence the secondary insurance will never receive EOMB. If that EOMB is forwarded to the secondary carrier, it too will be non-processed.
In the case of where the GY modifier is appropriate, patients are not required by statute to sign an ABN for foot orthotics. This is because the orthotics are statutorily non-covered in the case where no leg brace is an integral part of the shoe. However, there is nothing in the statute precluding a provider from having patients signing an ABN for foot orthotics.
To sum up, since leg braces attached to a shoe are a rarity these days, most podiatrists may seldom if ever have the opportunity to use the KX modifier when billing for foot orthotics. Instead, one may choose not to bill Medicare at all for foot orthotic devices. If the patient insists that your practice bills Medicare for foot orthotics, use the GY modifier. Please note that even though the DMEPOS contractor does not cover foot orthotics, the other DME requirements of only billing for custom items still apply. This includes not billing Medicare until the orthotics are delivered. If the patient’s secondary insurance and/or HSA will cover foot orthotics, be sure you abide by those regulations as well.
