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How to Bill Like a Lawyer


Attorneys bill for their time - don’t you wish you could? What if we told you that you can? Here’s how.

Last week you examined a patient and took a history. After ruling out this or that, you began to suspect the worst. So you sent him off for the appropriate tests. The qualifications fit for a 99213, so that’s how you coded the visit.

Today, the results are back: cancer.

The patient returns and you relay the bad news. It’s a difficult visit. Lots of listening to someone whose body has let him down. You support your patient, impart critical information, reassure him that there’s hope, and discuss treatment options. Several members of the patient’s family are there, too, and they have questions. You spend 45 minutes on this counseling.

How on earth do you code that? You performed no physical exam. You took no additional history. You made no medical decisions. These are, of course, the base criteria for E&M coding; more or less activity in each category can bump the code up or down a notch. But what you did for this patient has real value - and it took more of your time than most visits. Lawyers charge by the hour. Why can’t you?

Or can you?

Yes, you can - sometimes. The key is to use time-based billing whenever possible. Essentially a separate path to the same E&M codes you normally use for office visits, time-based codes use time as the sole criterion for selecting a code. Using this method, you can actually bill the 45-minute appointment discussed above as a 99215.

Done right, time-based coding can make getting paid for the counseling aspect of practicing medicine much easier and more straightforward than standard E&M coding. In many cases, you’ll be able to use higher E&M codes without prompting an audit.

The caveat: Although it’s the easiest - and most lucrative - way to get paid for your time without converting your practice to a cash model (and we’ll get to that, too), time-based billing only works under certain circumstances. Here are the critically important provisos that must be satisfied:

  • More than 50 percent of the time you’re with a patient must be spent on counseling or coordination of care. For example, let’s say you examine a wheezy patient and bring up the idea of quitting smoking. She is resistant, but after you take some time to show her some statistics on the Internet and also calculate her “smoker’s age” on some Web site, she comes around. So you move on to some serious discussion on smoking cessation, including medication options and lifestyle changes. The stethoscope to her chest took two minutes, while the discussion took 42 minutes. Use time-based coding.

  • You cannot count time spent by ancillary service providers, such as a nurse drawing blood. Also, did you leave the room to go check on another patient? Sorry, that time doesn’t count toward this code.

  • You must document the time, and what you discussed. This simply means notating in the chart how long you performed counseling and/or coordination of care for the patient.

  • Your description of what you discussed must sound plausible for the amount of time you claim. Time-based coding in and of itself does not provoke an audit. Frankly, the payer only sees the billing code and the diagnosis code; it has no idea you coded based on time when your claim comes in. But it’s this combo you need to focus on to avoid raising a payer’s eyebrow. For example, coding to a level 4 using time-based rules with a diagnosis code for a plantar wart likely won’t cut it, even if the kid was incredibly uncooperative and wasted gobs of your time escaping from the exam room and squirreling his tiny body under a waiting room chair. Exasperating? Definitely. But it doesn’t qualify as a time-based code.

Other ways to cash in

There are other ways to use time to code. You’ll want to consult an expert to get the nitty-gritty details, but here’s a brief rundown of some areas where you can code based on time:

  • Prolonged services - Say you have a new patient whose medical history and current clinical issues are long and complex. Completing this initial exam seems to take much longer than usual. But here’s the good news: You can tack on a prolonged services code 99354 as a companion to the E&M code if the visit took 30 to 60 extra minutes to complete. More good news: You can add on a 99355 for every 30 minutes beyond that initial extra hour.

The CPT manual lists typical times that each code should take (see chart below), and the threshold times for tacking on the prolonged services codes.

  • Modifier -22 - If you perform a procedure that normally would take a couple of hours, but, due to certain conditions - your patient is morbidly obese or has unexpected adhesions, for example - it ends up taking 12 hours, you don’t have to write off the extra 10 hours. You can attach Modifier -22 to the procedure code and get paid for the additional time you spent. Modifier -22 means that you performed services “significantly greater than usually required,” according to Medicare’s rules. Use it when warranted, but make sure you honor some important stipulations:

  • It’s not enough to claim the procedure was difficult; you must explain why. For claims using Modifier -22, supply a written description that states exactly why the procedure was so hard and, therefore, took so long. A patient simply being obese won’t cut it; outlining how said obesity caused undue difficulty and, therefore, increased time will up your chances greatly.

  • Include specific information to justify your claim. You must show a clear contrast between the normal time for a certain procedure vs. the actual time it took you.

  • Include diagnoses and appropriate ICD-9-CM codes to back up your claims of added difficulty.

  • Write the explanation so that a nonsurgeon can understand it. Use clear terminology and simple medical explanations. If the payer can’t comprehend what you’ve written, it is more likely to reject the modifier.

  • Modifier -22 doesn’t work with all codes. You can only use Modifier -22 with procedure codes that have a global period of zero, 10, or 90 days. Everything else? Sorry, won’t work.


Even if you’ve never once had a case where you spent a great deal more time than normal on a certain procedure, always document the time anyway every time you do a procedure, says Barbara Cobuzzi, senior coder and auditor for The Coding Network in Beverly Hills, Calif., and president of practice management consulting firm CRN Healthcare Solutions. “Then when you have that exceptional case, and you bill that -22 modifier to get paid more money,” you can feel good about getting it because you have the historic documentation to show how this time was inordinately long, and you deserve to get paid more.

  • Patient discharge from hospital - Discharges from the hospital can be straightforward and, therefore, quite speedy, or they can be complex and, therefore, quite slow. If you don’t use a hospitalist, then acquaint yourself with time-based hospital discharge codes 99238 and 99239. Use the former when the discharge takes less than 30 minutes, the latter when it takes longer.

  • Care plan oversight - Some of your patients have chronic conditions requiring your ongoing oversight, such as those receiving at-home IV treatment, slow-healing wounds, post-op patients, and the like. In these cases, you can bill based on time using care plan oversight codes. It’s a bit complex, but basically, every time you do anything that requires your attention to that patient’s treatment, document it. The threshold here is 30 minutes. “Once you reach that 30-minute mark, you’ve got the documentation to support the code,” says Marie Pelino, senior consultant and reimbursement specialist for practice management consulting firm SHR Associates in Annapolis, Md. “The time requirement is built in that you have to document you spent 30 minutes in the course of a day - accumulated time - on a treatment plan.”

If you have a number of patients like this, purchase a ledger book and when you go through all your chronic cases each day, you make note of everything you do. If a nurse is going out to a patient’s home, she calls in to report any changes. You may adjust the treatment plan then. Document this. “You must fill it out as you do it,” says Pelino.

Why don’t physicians like it?

Pelino says that in her experience physicians don’t like to write down the amount of time they spend with a patient; they think the associated upcoding will trigger an audit. “But that’s not how it works,” she says. “They’re billing to different payers, for one. … If an insurance company were to come in and [conduct an] audit they can only look at their own subscribers.”

Indeed, physicians should get over their fear of time-based coding and go for it, says Pelino, especially in situations like preoperative visits or signing consent forms. “That’s pretty much going to be time-based,” says Pelino. “They’ve already gone over the exam; now they’re just talking. Don’t need to repeat the history, no new problems developed.”

So what are the downsides of coding by time? “I don’t think it can trip you up; I think that’s a misconception,” Pelino says (as long as you follow the few stipulations listed above, of course). “[Payers] don’t know if you’re coding based on time or not; you’re just reporting a code and a diagnosis,” she continues. “What they will do - if your coding pattern makes you look like an outlier - is they may request information.”

Yes, that could mean an audit, even of just one chart. But you should easily pass this extra scrutiny - if you’ve been routinely documenting your times and writing reasonable explanations. That’s the information they want. So, no problem there - you’re covered.

There’s another reason physicians tend not to use time-based codes, says Cobuzzi: their own lack of time. “Even if they have a good understanding, [physicians] don’t have the time to do the calculation on what they documented,” says the 20-year veteran coding expert. “They see a patient for 10 to 12 minutes. They have to look at the chart and quickly decide.”

But really, how much time does it take to learn to track your time? Put a clock in every exam room, or just start wearing an easy-to-read wristwatch. Make a note of the start time of each exam, and you’ll soon develop a good sense for whether a particular office visit would work well being time based.

After all, this is essentially what lawyers do. They have time-clocks at their desks. As soon as a lawyer takes your phone call, he hits that timer. You can be sure he keeps track of every second he focuses on your case, on or off the phone, because from his perspective, time really does equate to money. Granted, you don’t have quite that much latitude, but why not take full advantage of billing by time within your payers’ rules?

You can even take the concept of time-based billing beyond insured patients to all your patients, particularly if yours is one of the few-but-growing number of practices that doesn’t accept insurance.

Consider that some people need very little of your time; others are veritable train wrecks. For those with insurance, time-based coding can help keep your revenue stream where you want it. But what about your cash patients? Can you devise a time-based payment system that’s fair to them and you?

Family physician Bruce Mayer had this question top of mind when he opened his practice nearly three years ago in Williamsburg, Va. He feels a great sympathy for the uninsured, and he wanted to offer them affordable quality care without bankrupting himself. Mayer’s solution: incremental billing. When he enters an exam room holding a self-pay patient, Mayer starts the clock. “I tell them [the fee] is $60 for 15 minutes. If it goes to 16 minutes, that’s $120. It’s simple,” he says. “Some people need less time, some more. What happens if one [patient] comes in with a sprained ankle, and the next patient comes in with heart failure? Are you going to bill the same way?”

The key to making this system work is to be crystal clear about how it works, he says. Post a policy and train everyone on staff to explain the payment system properly to any cash patients. “I’m very upfront. My staff says, ‘Here’s how it’s done. Dr. Mayer’s on your side.’” By this he means that he will give a patient the heads up that a 15-minute incremental milestone is about to be reached. What does the patient want to do? “It makes them responsible too,” he points out. “If they want to talk endlessly, they can do that, but they’ll pay for it.”

Mayer says that the 5 percent of his patient population who are self-pay love this pay-as-you-go system. Indeed, giving uninsured people the choice to wrap things up or gab on is surely empowering to those routinely tossed about in the U.S. healthcare arena. “And they don’t have to spend hours in the emergency room,” says Mayer.

His only regret is that he can’t extend his payment system to the specialists he must sometimes refer his self-pays to. “I had a patient who had an irregular heartbeat; he needed an echocardiogram. How many cardiologists do fee-for-service? Zero. Hospitals? Zero. What works in our system? Insurance. I can give them my time, but I can’t do surgery.”

Still, his cash patients can be smart cookies, too, about getting the most out of Mayer. “One patient turned the tables on me,” says Mayer. “He’d come in and we’d taken care of his issue in five minutes. But he wanted his 10 minutes; he’d paid for it,” says Mayer. So the two talked football until time was up.

Take the chance

Maybe you don’t like to document - many physicians don’t - but Cobuzzi stresses that documentation is in fact your best friend in terms of getting paid and avoiding take-backs. “The system doesn’t necessarily believe that all doctors are documenting properly,” she says. “So documentation is one way to prove what they’ve done.”

Primary-care docs in particular spend a great deal of time performing uncompensated care. But perhaps some of that time can be recouped if you start thinking along time lines. In one respect, billing based on time is easier on you, says Pelino. “Medical decision making is more arbitrary; time is absolute.”

Pelino also points out that “sometimes a patient just needs to be heard.” That in and of itself is a valid reason to code using time as your basis, as paying attention to the subtext of a patient’s ramblings can tell you a great deal about what’s really wrong. Think about the last patient you had who burst into tears after you simply asked, “How ya doin’?” A diagnosis of depression needs your time and expert attention, but you shouldn’t have to do it for free. Time is money, so get paid for yours.

Shirley Grace is an associate editor on staff at Physicians Practice. She can be reached at shirley.grace@cmpmedica.com.

This article originally appeared in the January 2009 issue of Physicians Practice.

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