Current Procedural Terminology (CPT) is the billing language of American medicine. The health care system established the CPT code that was created by The American Medical Association (AMA) in 1966 and updated yearly, as the national common language used by federal, public, and private plans.

Evaluation and Management (E/M) codes are the CPT section used for office and telehealth visits. In 2021, E/M rules changed. You select the visit level by medical decision making or by total time on the date of the encounter. Medical decision making, MDM, means the complexity of the work to assess and treat the patient. The CPT Manual defines MDM by three elements: problems addressed, data to review and analyze, and risk of complications or morbidity from your management. Two of the three elements must meet or exceed the level billed. Time includes face-to-face and non-face-to-face work, such as record review, ordering and interpreting tests, counseling, and completing the note. History and exam must be medically appropriate, but they no longer drive the code level. This is not trivial; it is the rulebook the health care system and insurers must use. The case of United States v. Ron Elfenbein proves why.

Dr. Elfenbein, at the behest of federal and state authorities, ran urgent care sites in Maryland during COVID-19. His teams tested patients, assessed risk, counseled families, ordered and interpreted tests, and documented under pressure while treating a new condition (COVID-19) with an unknown clinical course. The government charged him with health care fraud for billing many visits at level 4. A jury, asked to use common sense to judge Dr. Elfenbein, convicted him. The federal judge presiding later reviewed the full record and entered a judgment of acquittal. The judge found that the government failed to prove the codes were false beyond a reasonable doubt. Ambiguity in the CPT rules and COVID-19 guidance defeated the theory of the case. The judge also found the weight of the evidence did not support the verdict and conditionally granted a new trial.

The case was not about “common sense” impressions of short visits. It was about compliance with a complex set of CPT rules. The government had to prove falsity under those rules. It did not. The court found the 2021 CPT Manual and the related COVID-19 coding guidance were “unquestionably ambiguous.” In criminal law, ambiguity cannot be stretched into guilt. Prosecutors must show that the physician’s interpretation was objectively unreasonable, or that the claims were false even under a reasonable interpretation. They failed to do so.

Organized medicine supported that reading. The American Medical Association and MedChi filed an amicus brief. They explained CPT’s role as the national clinical nomenclature for reporting services and urged courts to respect clinician judgment in code selection. Differences in interpretation or inadvertent E/M errors should be handled by education or repayment pathways, not by criminal indictment. Overpolicing coding judgment chills care.

This is one half of the vise. The other half is private insurer downcoding.

Downcoding is when a payer changes a submitted CPT code to a lower level after the claim is filed. Many plans now run automatic reductions that ignore the actual clinical complexity or the total time documented. Doctors then must appeal, line-by-line, to claw back the work they already did. News coverage and medical societies have flagged this as a growing practice, with policies that explicitly target higher-level E/M codes for adjustment. The doctors are “guilty until proven innocent” when practicing medicine and billing for services where claims are downgraded before any human reviews the chart.

Here is what an E/M visit really looks like in primary care or psychiatry. You review outside records before the call. You screen for red flags. You reconcile medications. You weigh drug interactions. You order and interpret tests. You counsel the patient and coordinate follow-up and message the family. Then you document the assessment and plan. Under the 2021 CPT rules, you may code by total time for all of that date’s work, or by MDM across problems, data, and risk. When a payer auto-downcodes, it erases that unseen labor. When prosecutors import that logic into a criminal case, they criminalize the work itself.

The Elfenbein ruling offers a path. Courts will protect due process when the record shows real clinical work under ambiguous rules. The judge relied on the 2021 CPT framework, pandemic guidance, expert testimony about ambiguity, and the lack of proof of falsity beyond a reasonable doubt. That standard should guide prosecutors and payers. Prove falsity under the governing text. Do not guess.

Policy should catch up

First, draw a bright-line between fraud and disagreement. Fraud is billing for services not performed, forging notes, or lying about what happened. Disagreement is level 3 versus level 4 under evolving CPT text. Enforce the first. Educate and correct the second. The AMA brief says this openly.

Second, fix appeal lanes for downcoding. If a payer lowers your E/M level, require a written citation to the CPT rule that applies to that date of service. Require clinical peer review with name and specialty. Publish reversal rates. Sunshine drives accuracy. External reporting shows current policies that target higher-level E/M codes, so transparency matters.

Third, stop retroactive reinterpretation. When CMS or a carrier updates guidance, apply it going forward. No more audits that punish yesterday’s care under tomorrow’s rules. The 2021 shift was large. Physicians followed the text in good faith. Do not rewrite history.

Fourth, center patient impact. During COVID-19, public health leaders called for counseling at the time of testing and allowed E/M coding for that work. That policy reduced harm. Years later, punishing those visits tells clinicians to do less in the next emergency. Patients lose.

Practical steps for clinicians

Code to the standard. If you use time, capture total time on the date of the encounter. If you use MDM, show the problems addressed, the data you reviewed and analyzed, and the risk you managed. Keep your compliance program active. Appeal downcoding with citations. Track payer patterns and send them to your medical society. These are the rules the court used. Use them too.

A note to prosecutors and payers

Respect the boundary between dispute and deception. If you believe a doctor lied, prove falsity under the 2021 CPT text and related guidance. If you see a good-faith interpretation dispute, fix the rules and educate. Save criminal courts for crime.

We need fewer games and more care. Hold physicians to the rulebook the AMA has maintained since 1966. Do not punish us for following it in good faith while treating patients. The Elfenbein case should be the last time a doctor is marched into a courtroom over CPT ambiguity. Downcoding is the crime. Not doctors’ work.

Muhamad Aly Rifai is a nationally recognized psychiatrist, internist, and addiction medicine specialist based in the Greater Lehigh Valley, Pennsylvania. He is the founder, CEO, and chief medical officer of Blue Mountain Psychiatry, a leading multidisciplinary practice known for innovative approaches to mental health, addiction treatment, and integrated care. Dr. Rifai currently holds the prestigious Lehigh Valley Endowed Chair of Addiction Medicine, reflecting his leadership in advancing evidence-based treatments for substance use disorders.

Board-certified in psychiatry, internal medicine, addiction medicine, and consultation-liaison (psychosomatic) psychiatry, Dr. Rifai is a fellow of the American College of Physicians (FACP), the American Psychiatric Association (FAPA), and the Academy of Consultation-Liaison Psychiatry (FACLP). He is also a former president of the Lehigh Valley Psychiatric Society, where he championed access to community-based psychiatric care and physician advocacy.

A thought leader in telepsychiatry, ketamine treatment, and the intersection of medicine and mental health, Dr. Rifai frequently writes and speaks on physician justice, federal health care policy, and the ethical use of digital psychiatry.

You can learn more about Dr. Rifai through his Wikipedia page, connect with him on LinkedIn, X (formerly Twitter), Facebook, or subscribe to his YouTube channel. His podcast, The Virtual Psychiatrist, offers deeper insights into topics at the intersection of mental health and medicine. Explore all of Dr. Rifai’s platforms and resources via his Linktree.