December 24, 2021 | By Grant Huang, CPMA, CPC
The 2021 E/M guidelines’ more permissive rules for time-based coding is a potential watershed moment for physicians who want to spend less of their time documenting E/M notes. But if we interpret these changes to mean that the longstanding concept of “medical necessity” can be ignored whenever physicians record the number of minutes they spent, the resulting documentation will be a ticking compliance time bomb.
In this article, I will argue that medical necessity must remain a consideration for auditors when they review E/M documentation and pivot to discuss how auditors should educate providers on what has – and has not – changed as a result of the 2021 guidelines being implemented.
Why gray areas tend to benefit payers
The full CPT language of the 2021 guidelines do not explicitly address several important questions, including these three: First, does medical necessity remain the overarching criterion in supporting an E/M code level, and would it thus supersede any documentation of time spent? Second, when the medical decision making (MDM) supports one code level and the time documented supports a different code level, which should take precedence over the other? Third, with the counseling requirement gone, how much documentation, if any, describing what the time was spent on, should accompany the time statement?
These are all gray areas that you won’t find definitive answers to within the text of the 2021 CPT guidelines for E/M services. However, if I were a betting man, I’d put good money on insurance payers using some or all of these gray areas as a basis for denying high-level E/M services on a post-payment audit, especially if the provider being audited was a statistical outlier in their utilization of high-level E/M codes.
It is with these two points in mind that I pivot to some recommendations on how auditors should approach the task of auditing E/M codes being reported on the documentation of time spent. Remember, as compliance auditors, risk mitigation is a key emphasis when we audit and educate providers. In my conversations with providers and auditors regarding the 2021 guidelines, I have been careful not to adopt an expansive interpretation of the 2021 revisions to using time to select code level. This is especially important when dealing with providers who were already using time to support E/M levels on every single encounter.
Audit recommendations for 2021 time guidelines
- Medical necessity still matters. Medical necessity has never gotten a formal quantification rubric in the way that MDM has under the E/M guidelines. But I have always emphasized that medical necessity can be gauged by examining the nature of the presenting problem, the history of present illness, and the provider’s assessment and plan. Medical necessity is met when the service “is furnished in accordance with accepted standards of medical practice for the diagnosis or treatment of the patient’s condition,” according to the Medicare Program Integrity Manual (chapter 3, section 6.2.2). In other words, would it be within widely accepted clinical standards to spend 60 minutes with a patient who has stable hypertension and a rash that appears to be an allergic reaction to their new anti-aging cream, only to write a plan of care that says continue baby aspirin and “watch and wait” with respect to the rash? I would argue, as I suspect would many payer auditors, that even though the provider can spend 60 minutes on such an encounter, it was not medically necessary to use that much time given the nature of the problems and the management options chosen. In my view, nothing in the 2021 guidelines can really defend taking a new interpretation, and I recommend discussing specific scenarios with providers who want to follow a more liberal interpretation of the revised rules.
- Include some accounting of how the time was spent. The CPT text doesn’t require any specific description of what the provider’s documented time was spent on, a relaxing of the previous standard that not only required more than 50% of the face-to-face encounter to be spent on counseling and/or coordination of care, but also that the provider summarize the counseling. On top of this, the 2021 guidelines allow non-face-to-face time spent on the same date of service on tasks directly related to the E/M encounter to be counted towards the time spent. I strongly advise that providers be educated to include some description of how they spent the time, especially if they intend to claim non-face-to-face time spent on the activities permitted by CPT below. I suggest building a free text field in the EHR template to prompt the provider to give some description of how they spent the time being claimed. The 2021 text states the following activities can be counted towards time, when performed:
- Preparing to see the patient (e.g., review of tests)
- Obtaining and/or reviewing separately obtained history
- Performing a medically appropriate examination and/or evaluation
- Counseling and educating the patient/family/caregiver
- Ordering medications, tests, or procedures
- Referring and communicating with other health care professionals (when not separately reported)
- Documenting clinical information in the electronic or other health record
- Independently interpreting results (not separately reported) and communicating results to the patient/ family/caregiver
- Care coordination (not separately reported)
- Don’t use time spent to support every single E/M visit. This may be controversial, or even unwelcome advice for some physicians, but I continue to take the view that providers should code a visit based on time only when that visit is taking longer than usual, whether due to counseling, coordination of care, preparing for the visit by finding and reviewing old records, or some other reason provided for in the CPT guidelines. With good documentation, the MDM will support a higher level of service without needing to count time. Indeed, to begin documenting time on each visit poses its own level of risk, especially if the practice also uses non-physician practitioners (NPP) and incident-to billing.
For providers who dislike having to spend a lot of time documenting progress notes (a category that includes every single physician I’ve ever met), the 2021 guidelines can seem like a tempting invitation to update their E/M templates to prompt for the number of minutes they spend on each encounter and make it open season on time-based E/M coding.
But there are many pitfalls associated with the widespread use of time to select E/M code levels. Long before the 2021 guidelines were conceived, a study of physician time by researchers at Harvard University revealed that “medically unbelievable” amounts of time were being claimed – more than 20 hours a day in some cases. The culprit was incident-to billing, which made it impossible for payers to separate physician time from time spent by their NPPs. After 2021, it will be easy for physicians to generate medically unbelievable amounts of time if they start counting non-face-to-face time as well as their face-to-face visit time on every single encounter. Remember – payers know that more relaxed rules and more gray areas offer an opportunity for more audits and overpayment findings. For more information about this topic, check out our upcoming webinar entitled “Do you Have Time to Talk about E&M: Risk Associated with Time Based E&M Services,” on Tuesday, January 25, 2022.