From what I get from the APA is that the E/M cannot be based on time, you have to use the counseling codes as well.

Psychotherapy (formerly 90804-90808, 90816-90821)
For use in all settings; time is with patient and/or family)

90832, psychotherapy, 30 minutes
90834, psychotherapy, 45 minutes
90837, psychotherapy, 60 minutes

Evaluation Management (E/M) and Psychotherapy (formerly 90805-90809, 90817-90822)

Appropriate E/M code (not selected on basis of time), and
+90833, 30-minute psychotherapy add-on code
Appropriate E/M code (not selected on basis of time), and
+90836, 45-minute psychotherapy add-on code
Appropriate E/M code (not selected on basis of time), and
+90838, 60-minute psychotherapy add-on code

Karen Habel, CDA, CMBSI, CDBSI

Nothing I say shall be construed as legal advice; always check with your own financial or legal advisors for your specific situation.