http://www.aaos.org/news/bulletin/jun07/managing5.asp
Modifier 82—Assistant Surgeon (when qualified resident not available)
The unavailability of a qualified resident is a prerequisite for use of modifier 82 appended to the usual procedure code number(s). Because Medicare reimburses academicinstitutions for resident services, practices in those settings will have to justify claims for assistant surgeon services.
Medicare will reimburse for assistant surgeon services—even in a setting with residents—if there is no qualified resident available. This may mean that no residents are available (a distinct possibility because of the 80-hour work restrictions) or that the residents available do not have sufficient training to properly assist with the procedure.
When submitting Medicare claims with modifier 82, the practice/department must have a signed attestation on file confirming that no qualified residents were available. This attestation would be needed during an audit of practice records, so it should be filed in the patient’s medical record or scanned into the electronic medical record.
Occasionally, commercial plans will attempt to deny assistant surgeon services, citing the availability of residents. But unlike Medicare, these commercial plans do not pay into graduate medical education funds. Thus, these attempts to circumvent payment for medically necessary assistant surgeon services are unacceptable. Although this issue is perhaps best managed during contract negotiations, the plans may have claim adjudication systems with automatic edits, based on place of service, which are difficult to adjust. If such denials occur, the practice may need to use modifier 82 and note that a signed attestation is on file to bypass system edits.