cpt code for office visit decision making

List With Office Visit CPT Codes (New & Established Patients)

The CPT codes for office visits can be found in the CPT manual; under range CPT 99202 until 99205 for office visits of new patients . For office visits of established patients, you can use range 99211 to CPT code 99215. We also included CPT 99070 in case you need to bill extra supplies/materials for office visits and CPT code 99072 if extra staff and supplies were needed during a Public Health Emergency.

CPT Code 99070

Long description of CPT 99070 : Supplies and materials [except spectacles] provided by the physician or other qualified health care professional over and above those usually included with the office visit or other services rendered [list drugs, trays, supplies, or materials provided].

Short description: Extra supplies/materials for office visit.

CPT Code 99072

Long description of CPT 99072 : Additional supplies, materials, and clinical staff time over and above those usually included in an office visit or other non-facility service[s], when performed during a Public Health Emergency, as defined by law, due to respiratory-transmitted infectious disease.

Short description: Extra supplies and staff time for office visits during Public Health Emergency.

CPT Code 99202

Long description of CPT 99202 : Office or other outpatient visit for the evaluation and management of a new patient , which requires a medically appropriate history and/or examination and straightforward medical decision making. When using time for code selection, 15-29 minutes of total time is spent on the date of the encounter.

Short description: 15-29 minute office visit for new patient evaluation and management.

CPT Code 99203

Long description of CPT 99203 : Office or other outpatient visit for the evaluation and management of a new patient, which requires a medically appropriate history and/or examination and low level of medical decision making. When using time for code selection, 30-44 minutes of total time is spent on the date of the encounter.

Short description: 30-44 minute office visit for new patient evaluation and management.

CPT Code 99204

Long description of CPT 99204 : Office or other outpatient visit for the evaluation and management of a new patient, which requires a medically appropriate history and/or examination and moderate level of medical decision making. When using time for code selection, 45-59 minutes of total time is spend on the date of the encounter.

Short description: 45-59 minute office visit for new patient evaluation and management.

CPT Code 99205

Long description of CPT 99205 : Office or other outpatient visit for the evaluation and management of a new patient, which requires a medically appropriate history and/or examination and high level of medical decision making. When using time for code+ selection, 60-74 minutes of total time is spent on the date of the encounter.

Short description: 60-74 minute office visit for new patient evaluation and management.

CPT Code 99211

Long description of CPT 99211 : Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician or other qualified health care professional

Short description: Short office visit for established patient management.

CPT Code 99212

Long description of CPT Code 99212 : Office or other outpatient visit for the evaluation and management of an established patient, which requires a medically appropriate history and/or examination and straightforward medical decision making. When using time for code selection, 10-19 minutes of total time spent on the date of the encounter.

Short description: 10-19 minute office visit for established patient management.

CPT Code 99213

Long description of CPT 99213 : Office or other outpatient visit for the evaluation and management of an established patient, which requires a medically appropriate history and/or examination and low level of medical decision making. When using time for code selection, 20-29 minutes of total time is spent on the date of the encounter.

Short description: 20-29 minute office visit for established patient management.

CPT Code 99214

Long description of CPT 99214 : Office or other outpatient visit for the evaluation and management of an established patient, which requires a medically appropriate history and/or examination and moderate level of medical decision-making. When using time for code selection, 30-39 minutes of total time is spend on the date of the encounter.

Short description: 30-39 minutes office visit for established patient management.

CPT Code 99215

Long description of CPT 99215 : Office or other outpatient visit for the evaluation and management of an established patient, which requires medically appropriate history and/or examination and high level of medical decision making. When using time for code selection, 40-54 minutes of total time is spent on the date of the encounter.

Short description: 40-54 minutes office visit for established patient management .

https://www.aapc.com/codes/cpt-codes-range/99211-99215/

https://www.aapc.com/codes/cpt-codes-range/99202-99205/

https://www.aapc.com/codes/cpt-codes/99070

https://www.aapc.com/codes/cpt-codes/99072

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Medical Decision Making

View full MDM levels/elements grid

Levels of MDM

The original four levels of MDM (straightforward, low, moderate, and high) have not changed for 2021. However, as codes 99201 and 99202 previously both described "straightforward" MDM and were differentiated only by history and/or exam elements, code 99201 will be deleted and E/M services previously reported using 99201 will be reported using 99202 beginning in 2021.

The table below shows the level of MDM for each office/outpatient E/M code.

MDM Element Titles

Each level of MDM continues to have the same three elements. For 2021, the titles of these three MDM elements have been revised to better reflect the medical decision making process. The table below highlights the revisions to the MDM elements titles effective January 1, 2021, for office/outpatient E/M codes.

The level of MDM for office/outpatient E/Ms continues to be based on 2 out of 3 elements.

Element 1: Problems Addressed

• The number and complexity of problem(s) addressed.

CPT defines a problem as "…a disease, condition, illness, injury, symptom, sign, finding, complaint, or other matter addressed at the encounter, with or without a diagnosis being established at the time of the encounter."

Element 2: Data Reviewed and Analyzed

• The amount and/or complexity of data to be reviewed and analyzed.

This element recognizes each unique test, order, or document to meet the requirements for each level of MDM. Tests can include imaging, laboratory, psychometric, or physiologic data. The difference between single or multiple unique tests is based on the applicable CPT code(s) for such tests. For example, CPT code 80047 describes a clinical laboratory panel that includes and requires multiple tests but is considered a single test because only one CPT code is reported.

Important for surgeons: Independent interpretation of a test performed by another physician and not separately reported by the surgeon (e.g., independent interpretation of a chest x-ray) meets a criterion for this element as "data analyzed." In addition, discussion of patient management (e.g., surgeon and physical therapist) or test interpretation with external physicians (e.g., surgeon and pathologist) meets a criterion for this element. However, external physicians cannot be in the same group practice or same specialty/subspecialty as the billing surgeon. For example, reviewing an image with your office partner would not count as a criterion for this element.

Element 3: Risk

• The risk of complications and/or morbidity or mortality of patient management.

CPT has developed an extensive definition for risk:

"The probability and/or consequences of an event. The assessment of the level of risk is affected by the nature of the event under consideration. For example, a low probability of death may be high risk, whereas a high chance of a minor, self-limited adverse effect of treatment may be low risk. Definitions of risk are based upon the usual behavior and thought processes of a physician or other qualified health care professional in the same specialty. Trained clinicians apply common language usage meanings to terms such as ‘high,’ ‘medium,’ ‘low,’ or ‘minimal’ risk and do not require quantification for these definitions, (though quantification may be provided when evidence-based medicine has established probabilities). For the purposes of medical decision making, level of risk is based upon consequences of the problem(s) addressed at the encounter when appropriately treated. Risk also includes medical decision making related to the need to initiate or forego further testing, treatment and/or hospitalization."

The MDM table provides examples of risk for moderate and high MDM that many surgeons can relate to, such as a decision regarding minor surgery with identified patient or procedure risk factors or a decision regarding elective major surgery without identified patient or procedure risk factors.

Download the Office E/M Coding Changes Guide (PDF)

Trump immunity case highlights: Ex-president's lawyers and DOJ argue before Supreme Court

Highlights from today's supreme court arguments.

• The Supreme Court heard arguments on former President Donald Trump ’s claim of presidential immunity from prosecution in special counsel Jack Smith's election interference case against him.
• Trump's lawyers argue that his efforts to overturn the 2020 election were “official acts” taken in office. His attorney D. John Sauer argued Trump's case before the court. Michael Dreeben responded for the U.S.
• Arguments began at 10 a.m. ET and ran for just under three hours. Conservative justices raised concerns about going too far in restricting a president while liberals worried about what a president unrestricted by the fear of criminal prosecution might do.
• The court, which has a 6-3 conservative majority, including three justices appointed by Trump, has come under criticism for the delay in considering the former president's appeal as the November presidential election approaches.

Follow live coverage of testimony in Trump's ongoing hush money criminal trial in New York.

Supreme Court signals further delay in Trump election interference case as it weighs immunity claims

Lawrence Hurley Supreme Court reporter

Ryan J. Reilly

WASHINGTON — The Supreme Court on Thursday indicated that any trial in former President Donald Trump’s election interference case is unlikely to take place anytime soon, with justices expressing concerns about whether certain presidential acts should be off-limits.

Although the court appears likely to reject Trump’s expansive claim of absolute immunity, it could remand the case for further proceedings, further delaying the chance of a trial taking place before the election.

The court is weighing the novel legal question of whether a former president can be prosecuted for what Trump’s attorneys say were “official acts” taken in office, though much of the focus remains on whether the justices will rule quickly so a trial can take place before the November election .

With most legal experts questioning Trump’s broad argument that the entire election interference indictment should be dismissed based on immunity, the court’s eventual ruling on the extent to which official acts are protected and how quickly it rules will be of equal importance.

While the court’s three liberal justices appeared most sympathetic to prosecutors, the court’s conservatives seems to have differing views on the scope of presidential immunity, making it unclear exactly how the court will rule.

Several justices raised concerns about the broad implications for future presidents, with most steering clear of discussing the specific allegations against Trump.

“If an incumbent who loses a very close, hotly contested election, knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” asked conservative Justice Samuel Alito.

Read the full story here .

Jack Smith was in court today

The special counsel was in the courtroom and present for arguments this morning.

Jackson expressed concerns about the prosecutions of future presidents

Summer Concepcion

At the close of arguments, Justice Ketanji Brown Jackson said there are real concerns about future presidents being prosecuted and asked Dreeben to comment on whether some of the caution from the Justice Department and prosecutors comes from an understanding that presidents will soon be former presidents as well.

Dreeben replied, “absolutely,” adding that her point is a “structural argument that’s built into the Constitution itself.”

Jackson went on to say that she views that as an “equal” argument to concerns that presidents wouldn’t be burdened by the fear about criminal prosecutions for their actions.

Court is adjourned

Alexandra Marquez is based in Washington, D.C.

Oral arguments are complete and court has adjourned for the day.

Government would still raise private conduct to jury, Dreeben says

During her questioning, Barrett asked whether the special counsel lawyers would still pursue prosecution of Trump's private acts even they weren't allowed to prosecute him for his official acts as president.

"There's really an integrated conspiracy here that had different components, as alleged in the indictment, working with with private lawyers to achieve the goals of the fraud, and ... the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed," Dreeben answered.

Dreeben added, "We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred," but if the court ruled that much of Trump's conduct was private, "we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took, however, you may consider it insofar as it bears on knowledge and intent."

Dreeben says government aims for a system that 'preserves the effective functioning of the presidency'

Dreeben acknowledged that "no perfect system" exists, but that the government is "trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law."

"And the perfect system that calibrates all of those values probably has not been devised," he said. "I think that the system that we have works pretty well, maybe it needs some, a few ancillary rules. It is different from the radical proposal” of my friend who argues absolute immunity.

Barrett replied that she agrees with that sentiment.

Kavanaugh presses Dreeben on Obama drone strikes

In response to a question from Kavanaugh about why former President Barack Obama was never prosecuted for drone strikes, Dreeben answered, in part, "this is actually the way that the system should function."

"So, the Office of Legal Counsel looked at this very carefully and determined that number one, the federal murder statute does apply to the executive branch, [but] the president wasn’t personally carrying out the strike," Dreeben said. He added, "But the aiding and abetting laws are broad, and it’s determined that a public authority exception that’s built into statutes and that applied — particularly the murder statute, because it talks about unlawful killing, did not apply to the drone strike. So this is actually the way that the system should function."

Kavanaugh also expresses concerns over potential breadth of ruling

Justice Brett Kavanaugh said that, like Gorsuch, he’s “very concerned about the future,” as opposed to this particular case.

“That’s the concern going forward, is that the system will, when former presidents are subject to prosecution ... the history of Morrison v. Olson tells us it’s not going to stop,” Kavanaugh said. “It’s going to cycle back and be used against the current president or the next president and the next president after that.”

“I want you to try to allay that concern — why is this not Morrison v. Olson redux if we agree with you?” Kavanaugh asked Dreeben.

Referring to the case Kavanaugh cited, Dreeben responded that "the independent counsel regime did have many structural features that emphasized the independence at the expense of accountability. We don’t have that regime now."

Gorsuch seems worried about writing a decision too broadly

In his questioning, Gorsuch said, “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it’s re-election or who knows.”

Dreeben: Trump using his presidential powers 'makes the crime ... worse'

Dreeben clarified that the U.S. isn’t charging Trump for seeking to appoint favorable figures to his Cabinet, but for seeking to remove those who wouldn't help him overturn the election and for seeking to appoint those who would help him.

“For an incumbent president to then use his presidential powers to try to enhance the likelihood that it succeeds, makes the crime in our view worse," Dreeben said.

He added, "We’re not seeking to impose criminal liability on the president for exercising or talking about exercising the appointment and removal power. No, what we’re seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election.”

Dreeben lists things Sauer said were official but government believes are private acts 

Dreeben listed out what Suaer said constitutes official acts but the government considers private.

“Organizing fraudulent slates of electors, creating false documentation that says, ‘I’m an elector, I was appointed properly,’” Dreeben said. “I’m going to send a vote off to Congress that reflects that petitioner won rather than the candidate that actually got the most votes and who was ascertained by the governor and whose electors were appointed to cast votes.”

“That is not an official conduct, that is campaign conduct,” Dreeben added.

Alito asks about what an incumbent who lost can do

Alito further pressed Dreeben with a question on the peaceful transfer of power between presidencies, asking, “If an incumbent who loses a very close, hotly contested election and knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

“I think it’s exactly the opposite, Justice Alito,” Dreeben answered, saying, “There are lawful mechanisms to contest the results in an election.”

Alito and Dreeben go back and forth over self-pardoning

Alito brings up the issue of self-pardoning, which other justices had previously raised.

If the court agrees that presidents can pardon themselves, "won't the predictable result be that presidents in the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?" Alito asked.

"I really doubt that, Justice Alito," Dreeben answered, adding later: "That seems to contradict a bedrock principle of our law, that no person shall be the judge in their own case."

Dreeben argues a president is constitutionally protected when attorney general says an action is lawful

Alito asked Dreeben, "If the president gets advice from the attorney general, that something is lawful, is that an absolute defense?"

Dreeben replied, "Yes."

"Wouldn’t that give presidents an incentive to be sure to pick an attorney general who can, who will reliably tell the president that it is lawful to do whatever the president wants to do if there’s any possibly conceivable argument in favor of it?" Alito pressed Dreeben.

Dreeben contended that "the constitutional structure protects against that risk."

"The president nominates the attorney general, and the Senate provides advice and consent," Dreeben said.

Alito invokes internment of Japanese Americans during World War II

As he questioned Dreeben, Alito asked, "What about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II, could [he] in fact have been charged under 18 U.S.C. 241 conspiracy against civil rights today?"

Dreeben agreed that, "Yes," he could have been charged if that happened today, "given this court’s decision in ... Trump v. Hawaii."

Alito: 'You don't think he's in a peculiarly precarious position?'

During his questioning, Alito seems skeptical of Dreeben's argument, asking him, "Did I understand you to say, 'Well, you know, if he makes a mistake, he makes a mistake. He's subject to the criminal laws just like anybody else.' You don't think he's in a peculiarly precarious position?"

In response, Dreeben told Alito, "He's under a constitutional obligation. ... He's supposed to be faithful to the laws of the United States and the Constitution of the United States."

He added, "And making a mistake is not what lands you in a criminal prosecution."

Dreeben notes the president lacks 'functions with respect to' certifying the winner of the presidential election

Dreeben circled back to a point the court discussed earlier regarding the "distinction between a public official acting to achieve public ends and a public official acting to achieve private ends" as applied to this case. 

"The president has no functions with respect to the certification of the winner of the presidential election," he said. "It seems likely that the framers designed the Constitution that way because at that time of the founding, presidents had no two-term limit, they could run again and again."

"So the potential for self-interest would explain why the state’s conduct, the elections, they send electors to certify who won those elections and to provide votes," he added. "And then Congress, in a joint extraordinary joint session, certifies the vote and the president doesn’t have an official role in that proceeding."

Gorsuch presses Dreeben on a president leading a peaceful protest

Gorsuch pressed Deeben about a potential scenario where a president leads a mostly peaceful protest or sit-in in front of Congress because he objects to a piece of legislation that’s going through, which leads to delays of proceedings in Congress.

Dreeben said he doesn’t think that would lead to prosecution.

“But without a clear statement that applies to the president ... it’s not core, the core kinds of activities that the court has acknowledged," Dreeben said. But things like the pardon power, the power to recognize foreign nations the power to veto legislation, the power to make appointments, these are things that the Constitution specifically allocates to the president.”

Sotomayor: President not mentioned in many federal laws

Sotomayor points out that the president is only explicitly mentioned in a few federal statutes, adding that, "Justice Barrett made the point that if we say a president can’t be included in a criminal law unless explicitly named, then that would bar the Senate from impeaching him for high crimes or misdemeanor because that means that he’s not subject to the law at all.”

Dreeben pushes back on 'taking away immunity' from Trump

Addressing Roberts, Dreeben said, "I would take issue, Mr. Chief Justice, with the idea of taking away immunity. There is no immunity that is in the Constitution unless this court creates it today."

"What is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of," he added.

Jackson questions whether Trump thinks every law needs to say it applies to the president

During questioning of Sauer, Jackson asked whether he believed that Congress would have to write "and the president is included" in every law it passed.

"I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the president just like everyone else," Jackson said. "So, what is the clear statement that would have to be made?”

Sauer said that he believes "Congress has to speak clearly before it interferes with the president’s powers."

Thomas asks why past presidents have not been prosecuted for overseas operations

Thomas said that in the not so distant past, presidents who have engaged in various activities such as coups have not faced prosecution, specifically mentioning Operation Mongoose, which aimed to remove the Castro regime from power in Cuba.

“If what you’re saying is right, it would seem that that would have been ripe for criminal prosecution,” Thomas asked Dreeben.

Dreeben replied, “The reason why there have not been prior criminal prosecutions is that there were not crimes.”

“And I want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts,” Dreeben said.

Trump's team is done. Now it's the U.S.'s turn.

Trump's attorneys are done with their arguments. Michael Dreeben has taken over with arguments for the U.S. now.

Jackson asks why 'the president would not be required to follow the law'

Amid her questioning, Jackson asks, "Why .... [would] the president ... not be required to follow the law when he is performing his official acts? Everyone else — there are lots of folks who have very high-powered jobs and they do so against the backdrop of potential criminal prosecution."

She further posited that perhaps presidents don't commit criminal acts because they're afraid of prosecution. That may not be case, she said, "once we say 'no criminal liability. Mr. President, you can do what you want.'"

In response, Sauer argued that presidents haven't been under credible threat of criminal prosecution since the founding of the U.S.

"The regime you've described is the one we've operated under for over 240 years," Sauer said.

Jackson tells Sauer that if a president weren't 'chilled,' then there would be no potential penalty for committing crimes

Jackson told Sauer that he seems to be "worried about the president being chilled."

She then argued that in reality, a "really significant opposite problem" would emerge.

"If the president wasn’t chilled, if someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country,” she said.

Barrett presses Sauer on impeachment clause

“You’ve argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right?” Barrett asked.

Sauer replied, “Yes, I think that’s the plain meaning of that second phrase in the clause.”

“OK, so there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment,” Barrett pressed. “So why is the president different when the impeachment clause doesn’t say so?”

Sauer replied that then-U.S. Solicitor General Robert Bork in 1973 argued that “the sequence is mandatory only as to the president.”

Gorsuch asks if a president can pardon himself

Asked by Justice Neil Gorsuch whether a president can pardon himself, Sauer responded, "Perhaps if he feels he has to, he'll pardon himself every every four years from now on."

Kagan presses Sauer on whether a president ordering his generals to stage a coup would be an official act

Kagan repeated the hypothetical situation of a president "who ordered the military to stage a coup — he’s no longer president, he wasn’t impeached, he couldn’t be impeached, but ordered the military to stage a coup, and you’re saying that’s an official act?” Kagan asked.

Sauer replied that “would depend on the circumstances whether it was an official act.”

Sauer says Trump made two official acts

Under questioning by Justice Elena Kagan, Sauer said two actions taken by Trump while in office were official, and thus he was ineligible to be criminally prosecuted for them.

First, Kagan asked about the "defendant [calling] the chairwoman of the Republican National Committee" and asking her "to gather electors in targeted states."

Then, she said, "The defendant asked the Arizona House speaker to call the Legislature into session to hold a hearing based on their claims of election fraud."

On the second point, Sauer said it was "absolutely an official act for the president to communicate with state officials."

Alito clarifies with Sauer that they want all official acts removed from the indictment

"When you say that the official acts should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial. So is that what you’re saying?" Alito asked Sauer. "That the prosecution should not be permitted at trial to prove the official acts as part of the conspiracies that are alleged?"

Sauer confirmed that was the premise of his argument.

"Absolutely, and we think that’s just the clear implications of Brewster and Johnson and their discussion. It’s very, very analogous context," Sauer said.

What's Blassingame?

Oral arguments have repeatedly referred to Blassingame, a decision from the U.S. Court of Appeals for the District of Columbia Circuit that involved numerous lawsuits against Trump in his personal capacity. The decision , which came out in December , denied Trump's claims of presidential immunity for now.

“The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints. We answer no, at least at this stage of the proceedings,” a panel of judges ruled.

The case is named after James Blassingame, a Capitol Police officer who was injured in the Jan. 6, 2021, riot .

Barrett asks Sauer a list of 'hypothetical 'acts

Daniel Barnes is reporting from the federal courthouse.

During her questions, Justice Amy Coney Barrett asked Sauer to "agree or disagree with the characterization of these acts as private." He agreed that all were private acts:

• Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results.
• Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contain false allegations to support a challenge.
• Three private actors — two attorneys, including those mentioned above, and a political consultant — helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.

Sotomayor asks Sauer about false electors scheme

“What is plausible about the president insisting and creating a fraudulent slate of electoral candidates. ... Is that plausible that that would be within his right to do?” Sotomayor asked.

Sauer replied “absolutely,” saying there was historical precedent in President Ulysses S. Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified.

“The notion that it’s completely implausible, it just can’t be supported based on the face of this indictment, or even knowing that the slate is fake ... that they weren’t actually elected, that they weren’t certified by the state.”

Sauer then disputed the characterization of the word “fraudulent” electors in the indictment.

“On the face of the indictment, it appears that there was no deceit about who had emerged from the relevant state conventions, and this was being done as an alternative basis,” he said.

Alito asks Sauer a hypothetical about 'plausible justification' as a standard for official acts

Justice Samuel Alito posed a question to Sauer: "Suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did. ... Would that be sufficient or if it is insufficient?"

In response, Sauer said he believed that would be insufficient, adding "that might be a much better rule than what emerged in the lower courts."

Jackson presses Sauer on Nixon's pardon

Justice Ketanji Brown Jackson posed the question to Sauer that if presidents can’t be prosecuted, why was former President Richard Nixon pardoned?

“What was up with the pardon for President Nixon? I think that if everybody thought that presidents couldn’t be prosecuted, then what was that about?” she said.

Sauer replied, “Well, he was under investigation for both private and public conduct at the time.”

Roberts' bribery hypothetical ties into Trump's first impeachment

Chief Justice John Roberts asked a hypothetical question about whether a president could be prosecuted for appointing someone ambassador after being paid a $1 million bribe.

One million dollars is exactly the amount of money that Gordon Sondland , who was at the center of Trump's first impeachment trial, gave to Trump's inauguration fund before he was named ambassador to the European Union.

Presidents of both parties have named donors to ambassadorships. The money that Sondland, a wealthy hotelier, donated went to Trump's inauguration fund, not Trump directly, so it wasn't a personal bribe.

“Do you know what a quid pro quo is?” Rep. Jim Jordan asked Sondland during a hearing in November 2019. "I do," Sondland responded.

NBC News’ Shaquille Brewster reports from outside the Supreme Court where protesters are demonstrating as the court is set to hear arguments over former President Trump’s claim of presidential immunity in the election interference case against him.

Sotomayor points out that founders had state constitutions that granted some criminal immunity to governors

Sotomayor pointed out that the founders had discussed whether to grant immunity to the president, adding that they had state constitutions that granted some criminal immunity to governors, but yet they didn’t take it up.

Instead, she said, they passed an impeachment clause that says you can’t remove the president from office except through a trial in the Senate and can impose criminal liability after.

Sotomayor seems skeptical of Sauer's argument

As she questioned Sauer, Sotomayor told him, "I am having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”

Sotomayor poses a hypothetical to Sauer about a president assasinating a rival

In a question to Sauer, Justice Sonia Sotomayor posed a hypothetical: If the president ordered the military to assassinate a rival he views as corrupt, "is that within his official act for which he can get immunity?"

Sauer answered that, "it would depend," but "we can see that could well be an official act."

Sauer argues against a president being imprisoned for 'controversial decisions'

Sauer argues in his opening that if a president can be charged, put on trial and imprisoned for “controversial decisions” upon leaving office, “that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed.”

“Could President George W. Bush be sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq?” he asked. “Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?”

Thomas asks the first question

Justice Clarence Thomas asks the first question, to Sauer. He asks Sauer to detail where presidential immunity is founded in law.

Oral arguments are underway

Oral arguments in front of the justices have begun.

Arguments come a day after Trump and allies face fallout from 'fake elector' scheme

Megan Lebowitz

Today's arguments come after several Trump aides and allies were indicted yesterday as part of an Arizona investigation into alleged efforts to overturn Biden's 2020 win in the swing state.

The former president was also described as an "unindicted coconspirator" in the indictment from the Arizona state grand jury.

Trump was also labeled an uncharged co-conspirator in the 2020 "false electors" scheme in Michigan, according to a state investigator's testimony , which also occurred on Wednesday.

Trump again asserts presidential immunity ahead of arguments

Jillian Frankel

In a series of posts to his Truth Social platform this morning, Trump again asserted that he has presidential immunity from criminal charges over his efforts to overturn the 2020 election results.

“Without Presidential Immunity, the Presidency will lose its power and prestige, and under some Leaders, have no power at all. The Presidency will be consumed by the other Branches of Government,” he wrote . “That is not what our founders wanted!”

Trump’s lawyers argue that their client is being prosecuted for “official acts” during his time in office. In his post, Trump argues that if a president does not have total immunity, then the opposing party can “extort and blackmail ” the president during his or her term in office.

“If a President does not have Immunity, the Opposing Party, during his/her term in Office, can extort and blackmail the President by saying that, ‘if you don’t give us everything we want, we will Indict you for things you did while in Office,’ even if everything done was totally Legal and Appropriate,” he wrote. “That would be the end of the Presidency, and our Country, as we know it, and is just one of the many Traps there would be for a President without Presidential Immunity.”

Here's the central question in this case

The justices will directly address the following question when they issue their opinion in this case: “Whether and, if so, to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?"

Former Missouri Solicitor General D. John Sauer will be arguing on behalf of Trump. He's argued in front of the Supreme Court once before, in a case he won 5-4.

On the opposing side, former deputy U.S. Solicitor General Michael Dreeben will argue for the U.S. He worked for special counsel Robert Mueller on the Russia probe and has argued in front of the Supreme Court over 100 times before.

Media is setting up outside the court amid a few protest banners

Media is gathered at the Supreme Court, preparing for arguments today. There are a few protest banners outside the fence, including a large sign in the style of Trump's campaign banners that reads: “LOSER."

Lead prosecutor is here

Thomas Windom, the lead prosecutor on Trump’s Washington election interference case, is attending arguments today. Stands to reason others from the special counsel’s office will be here as well.

Trump will be in N.Y. court as Supreme Court arguments play out

The former president will be in court in New York as today's arguments play out before the Supreme Court.

Trump faces 34 counts of falsifying business records tied to hush money payments to adult film star Stormy Daniels. He has pleaded not guilty.

David Pecker is expected to return to the Manhattan courthouse for witness testimony today, and Judge Juan Merchan is expected at some point to issue a decision on whether the former president willfully violated a gag order.

NBC News legal analyst Joyce Vance joins "Meet the Press NOW" to discuss what to expect as the Supreme Court is set to hear arguments on former President Donald Trump’s presidential immunity claims.

How judges previously responded to Trump's immunity arguments

Trump's presidential immunity arguments have been winding through courts for months ahead of today's arguments — with discouraging results for the former president.

In December, Judge Tanya Chutkan dismissed two of Trump's motions to toss out the D.C. election interference case against him, ruling that presidents do not have absolute immunity. Trump's lawyers had argued in an October filing to Chutkan that he should be shielded by presidential immunity.

Similarly, a federal appeals court ruled in February against Trump's assertion that he is immune from prosecution.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the appeals court said in the ruling .

Supreme Court tackles Trump’s broad claim of presidential immunity in election interference case

WASHINGTON — Tackling an unprecedented and politically fraught issue, the Supreme Court on Thursday considers former President  Donald Trump ’s assertion of total immunity from criminal charges over his attempt to overturn the 2020 election results.

The court will take on the novel legal question of whether a former president can be prosecuted for what Trump’s attorneys say were “official acts” taken in office, though much of the focus remains on whether the justices will rule quickly so a trial could take place before  the November election .

The case puts considerable scrutiny on the court, which has a 6-3 conservative majority that includes three justices Trump appointed. The court already handed Trump an election-year boost when it ruled last month that Colorado  could not kick him off the ballot .

Read the full story here

Before choosing 99213 for routine visits, consider whether your work qualifies for a 99214.

PETER R. JENSEN, MD, CPC

Fam Pract Manag. 2005;12(8):52-57

Data show that family physicians choose 99213 for about 61 percent of visits with established Medicare patients and choose 99214 only about 23 percent of the time for the same type of visit. 1 So 99213 must be the correct code to use for a “routine” visit, right?

Not necessarily. Many of us may be shortchanging ourselves by reflexively coding a routine office visit as 99213 when the clinical circumstances of the encounter justify the higher-level code. We have developed coding habits based on the misconception that repetitive, routine clinical thought patterns must automatically translate into low-complexity medical decision making. We simply do not appreciate the value of our cognitive labor. The best defense against this form of undercoding is a basic understanding of the medical decision making required for 99213 and 99214 visits.

Calculating medical decision making

According to Medicare’s Documentation Guidelines for Evaluation and Management Services, a level-3 established patient office visit requires medical decision making of low complexity. Moderate-complexity decision making is required for a level-4 encounter. Before you can distinguish between the two, you must understand that the level of medical decision making in a patient encounter is based on three parameters: the problems addressed, the data reviewed and the level of risk.

The problems and data are evaluated using a system of weighted points depicted in the tables . These tables were developed by the Centers for Medicare & Medicaid Services and distributed to all Medicare carriers to be used on a voluntary basis; although widely used, they are not part of the official E/M guidelines.

HOW IT WORKS

Use these tables (

) to calculate your level of medical decision making. Your assessment of the problems addressed, the data reviewed and the level of risk will determine the overall level of complexity. Remember that two of three elements are required.

An encounter earns points based on the number and type of problems addressed. For example, an encounter with a patient whose chronic illness is stable would be worth one “problem” point, while an encounter involving a patient with a new problem for which additional work-up is planned would be worth four points. The data table works similarly, with different numbers of points available depending on the type of data and the nature of the review. For example, reviewing or ordering a clinical lab test is worth one point, while reviewing and summarizing old patient records is worth two.

The risk table is identical to the one in the E/M guidelines. It only takes one element from any of the three categories listed in the table (presenting problems, diagnostic procedures and selected management options) to qualify for a particular level of risk. The documentation guidelines explicitly state that the physician should use the highest level of risk present when determining the complexity of the medical decision making. For example, an encounter with a patient who presents with one stable chronic illness would amount to a low level of risk. However, if the physician actively manages prescription drug therapy during the encounter, the risk level for the visit qualifies as moderate, because prescription drug management is associated with moderate risk.

After you determine the problem points, the data points and the level of risk, you can determine the complexity of the medical decision making. The “Medical decision making” table shows how the categories work together. The highest two of three elements determine the overall level of medical decision making.

Low complexity vs. moderate complexity

Distinguishing between low- and moderate-complexity decision making using the point system described above may seem awkward, but it is not difficult if you use a systematic approach. First, consider low-complexity medical decision making. Suppose you see a patient with osteoarthritis that was previously controlled on acetaminophen. The patient now says that the pain has gotten worse, so you decide to switch to over-the-counter ibuprofen and schedule a return visit in two months with routine labs.

Using the point system, this visit would add up to two problem points (for an established problem, worsening), one data point (for ordering labs) and moderate risk (due to the presence of a “mild exacerbation of one or more chronic illness”). Because two out of three factors must meet or exceed the requirements for any given level of medical decision making, it is easy to see that this encounter reflects low-complexity medical decision making, which would correspond to a 99213. Simply put, patients who are correctly assigned this code are not very sick. It is difficult to believe that the overwhelming majority of visits to primary care physicians fall into this category.

Now consider the cognitive labor required for a 99214 encounter, which calls for moderate-complexity medical decision making. Many physicians mistakenly believe that a patient needs to be in medical extremis to justify this level of medical decision making. If you break down the requirements, this misconception is easy to dispel.

Consider the patient above with osteoarthritis. If you add stable hypertension to the clinical scenario, the calculation of the medical decision making changes. In this case, you would garner three problem points (two points for the established, worsening problem of osteoarthritis and one point for the established, stable problem of hypertension). The data points would be unchanged (one point for ordering labs), and the risk would remain moderate (due to “mild exacerbation of one or more chronic illnesses”). Remembering that two out of three elements are required for any level of complexity, it now becomes apparent that the clinical circumstances justify moderate-complexity medical decision making.

This example shows that you can’t always rely on clinical intuition to predict the complexity of medical decision making. The hypertension may not make the patient seem much sicker to the physician, but that small clinical wrinkle pushes the medical decision making to the next level.

EXAMPLES OF MODERATE-COMPLEXITY DECISION MAKING

Patient has well-controlled diabetes and sub-optimally controlled hypertension. You increase lisinopril from 20 to 40 mg po qd. This visit contains three problem points: two for hypertension (established problem, worsening) and one for diabetes (established problem, stable). The risk qualifies as moderate due to either two stable chronic illnesses or prescription drug management.

Otherwise healthy established patient complains of intermittent light-headedness. You perform an ECG and review the tracing, which is normal. You order a Holter monitor and schedule the patient for a follow-up visit in one week. This visit contains four problem points for a new problem with additional work-up planned and three data points (two for independent review of image, tracing or specimen, and one for ordering a medical test). The risk is moderate based on the presence of an undiagnosed new problem with uncertain prognosis.

Patient has diabetic nephropathy and chronic renal insufficiency, with creatinine stable at 1.5 mg/dL. Diabetes and blood pressure are both optimally controlled. Labs show that the microalbumin-to-creatinine ratio has gone from 140 to 320 mg/g. You increase the patient’s ARB dose and plan to recheck the renal profile and spot urine protein in three months. This visit contains three problem points (one each for diabetes, hypertension and renal insufficiency) and one data point for reviewing labs. The risk is moderate due to prescription drug management.

Documenting a 99214

Of course there is more to selecting the correct code than just evaluating the level of medical decision making. The history and exam you document must meet certain criteria as well (see the code selection table ). Perhaps one reason physicians balk at the prospect of coding 99214 more often is the perception that the documentation is considerably more burdensome than for 99213. If you examine the E/M requirements for 99214, you will see that this is not the case. Remember that established patients require the documentation of only two out of three qualifying key components for any given level of care. Assuming that the medical decision making qualifies as being of moderate complexity and that medical necessity is clear, documenting either a detailed history or a detailed exam will support coding 99214.

Detailed history. According to the 1997 version of the documentation guidelines, a detailed history requires a chief complaint (CC), four elements of the history of the present illness (HPI) or the status of three chronic or inactive problems, a review of two to nine systems (ROS), plus at least one pertinent element from the past medical, family or social history (PFSH). Although this sounds like a lot of paperwork, the following example shows that it’s not that bad. Consider our patient with osteoarthritis and well-controlled hypertension:

CC: Follow-up osteoarthritis.

Interval history: The patient states his arthritis is no longer controlled on Tylenol. He complains of bilateral knee pain described as a dull ache, which has been worsening for the past two months. The pain is worse after walking long distances and is sometimes associated with swelling in both knees.

Medications: HCTZ 12.5 mg po qd, atenolol 25 mg po qd, acetaminophen 650 mg po q4h prn.

ROS: Musculoskeletal – negative for myalgias, proximal muscle weakness, or joint redness or warmth; and cardiovascular – negative for chest pain, orthopnea or PND.

Pertinent PFSH: Positive for HTN, which is well-controlled on current medications.

That’s all there is to a detailed history. The interval history contains five HPI elements (location, quality, duration, associated signs and symptoms, and modifying factors). The two systems of ROS (musculoskeletal and cardiovascular) and the PFSH (hypertension) are probative and informative. If you perform the documentation succinctly and precisely, the amount of information needed is not particularly onerous. The important thing is to document in an ethical manner by including only those elements that are reasonable and medically necessary for the clinical problems at hand.

Detailed physical exam: Instead of choosing to take a detailed history for the above 99214 encounter, some physicians may feel it would be more informative and within the bounds of medical necessity to perform a detailed physical exam. According to the 1997 E/M guidelines, this requires 12 bullets from any organ systems. Of course, each physician can perform whatever elements of physical exam he or she feels are clinically relevant, but a typical detailed exam for our patient with hypertension and osteoarthritis, for which nonsteroidal anti-inflammatory drug therapy is being considered, might look like this:

General appearance: No acute distress, looks about stated age, conversant.

Vitals: BP 130/80, HR 74, RR 20.

Eyes: Eye grounds clear with normal posterior segments.

Neck: No JVD or carotid bruits.

Lungs: Clear to auscultation and percussion.

CV: Regular rate and rhythm, no murmurs, rubs or gallops, and normal PMI.

Abdomen. Soft, non-tender, no HSM.

Extremities: Digits and hands show no active tenosynovitis or nodules; both knees have small effusions and demonstrate moderate crepitus and decreased range of motion; normal joint stability with no evident laxity; no peripheral edema, brisk pedal pulses bilaterally.

Skin: Normal turgor; no rash or levido reticularis.

This particular example contains at least 16 bullets, but the guidelines require only 12. Each exam element is clinically relevant and informative, satisfying the requirements for ethical documentation. As with the detailed history, the volume of data required for the detailed exam is not unreasonable.

Medical decision making. Whether you choose to fully document the history or the physical, it is important to remember to document the medical decision making as well. If a problem is uncontrolled, be sure to make that point clear in your assessment and plan. If the patient is starting new medications, don’t forget to mention it. Continuing our clinical scenario, here’s how one might reasonably document the medical decision making:

Assessment:

Worsening osteoarthritis.

Stable hypertension.

Start ibuprofen 400 mg po tid.

Continue current blood pressure medications unchanged.

Patient was educated about GI risks of increasing doses of ibuprofen, especially when combined with alcohol.

NSAIDS can also lead to worsening hypertension, so I asked the patient to monitor his blood pressure more frequently.

Return visit scheduled in two months with CBC and renal profile.

Giving yourself credit

The key to understanding when it is appropriate to code 99214 for a routine visit is to train yourself to recognize moderate-complexity medical decision making in your daily practice.

The ability to distinguish between level-3 and level-4 services is not an academic issue. In the current climate of shrinking reimbursement and increasing overhead costs, most doctors can’t afford to leave potential revenue on the table.

Pause for a moment before you code your next routine visit. Consider the medical decision making, including medical necessity, and let the intensity of the cognitive labor guide your code selection. Check to make sure your documentation is congruent with that code. You may be surprised how often 99214 is the appropriate choice.

Centers for Medicare & Medicaid Services Web site. Medicare Part B Physician/Supplier National Data, Calendar Year 2003. Available at: http://www.cms.hhs.gov/statistics/feeforservice/emspecialty03i.pdf. Accessed August 15, 2005.

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