Medicare to offer more waivers from e-prescribing penalty

As many as 209,000 doctors and other health professionals could be eligible to claim exemptions by Oct. 1 to avoid 1% Medicare pay reductions.

By Charles Fiegl — Posted June 6, 2011

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Physicians who see Medicare patients would have more opportunities to avoid being penalized for failing to prescribe medications electronically by a June 30 deadline under a proposed rule from the Centers for Medicare & Medicaid Services.

The proposed revisions would provide relief to eligible physicians who do not expect to report at least 10 paperless drug orders to CMS by June 30. Medicare will penalize doctors for failing to meet 2011 e-prescribing requirements by reducing payments by 1% in 2012. On May 26, the Medicare agency said it would give doctors a second chance to avoid the penalty after the deadline. It would allow physicians who did not meet the minimum reporting requirements to claim one of several hardship exemptions through a special website by Oct. 1.

The proposed rule also would apply to physician practices that already have adopted certified electronic medical record systems in an effort to earn Medicare or Medicaid meaningful use bonuses. Those practices could use those systems to satisfy the e-prescribing requirements as well. Under the current program, practices that use certified EMRs to send paperless drug orders will satisfy the e-prescribing requirement as long as the system meets four specific functionalities. If the proposed rule is finalized later this year, certified EMRs will be acceptable for e-prescribing in future reporting years even if they don't technically meet the four specific functionalities.

In addition to the expanded hardship exemptions, the revised language on the certified EMRs was a change requested by members of organized medicine, including the American Medical Association. Physicians complained that because the requirements for the e-prescribing incentive program and the EMR meaningful use incentive program were different, some paperless practices were concerned that they would need to buy and use a stand-alone e-prescribing system to avoid the 1% reduction in 2012.

"Eliminating unreasonable penalties and burdensome requirements, and providing physicians with more flexibility through an exemption process, will help ensure more physicians are able to successfully participate in the e-prescribing incentive program," said AMA President Cecil B. Wilson, MD. "The AMA has continually stressed to CMS that these changes were essential and is pleased to see them become a reality in a rule that will be finalized later this summer."

The Medical Group Management Assn. also was pleased with the proposed rule. However, some practices already had taken special steps earlier this year just to avoid the penalty -- actions that now have become unnecessary, said Anders Gilberg, MGMA's vice president of public and private economic affairs.

Some groups used temporary e-prescribing software, independent of their EMRs, and discarded the systems after reporting the minimum 10 e-prescribing encounters per physician. Others, such as some surgery practices, struggled to find ways to prescribe medications during office visits just so they would not be penalized in 2012.

"It's unfortunate it took until almost June for the proposed rule to come out," Gilberg said.

Expanded hardship exemptions

Approximately 109,000 to 209,000 physicians and other health care professionals could be eligible to file for hardship exemptions to the e-prescribing penalty by Oct. 1, CMS said in the proposed rule. The Medicare agency has proposed developing a special website for doctors and others to claim one of several hardships. CMS would approve the claims on a case-by-case basis, said Michael Rapp, MD, director of the CMS Quality Measurement and Health Assessment Group.

The initial rules had provided only two hardship exemption categories -- for physicians who practiced in rural areas with limited high-speed Internet access or for those who worked in areas with a limited number of pharmacies that accept electronic drug orders. CMS had required one of these exemptions to be reported before June 30.

The proposed rule would allow doctors to choose from these two hardships as well as four new exemptions on the website by the October deadline. The site would go live sometime after the rule is finalized in August, Dr. Rapp said.

The expanded list of hardship exemptions would include:

  • Physicians who register to participate in the Medicare or Medicaid EMR incentive program, and adopt and use certified EMR technology by the 2011 deadline.
  • Physicians who cannot prescribe enough drug orders electronically due to local, state or federal laws, such as those prohibiting paperless orders for narcotics.
  • Physicians with limited prescribing activity.
  • Physicians with insufficient opportunities to report the e-prescribing measures because the types of patient visits they claim are not eligible under the program.

"There will be an opportunity for physicians to indicate that they feel that they fit, and are requesting to be classified, in one of these hardship categories," Dr. Rapp said. "Then those individuals would be taken off the list to be 'subject to the negative payment adjustment.' "

Those who report that they e-prescribed 10 times before June 30 automatically would not be subject to the 2012 penalty, Dr. Rapp added. Of that subset, those physicians who report 25 e-prescribing encounters by Dec. 31 would receive a 1% bonus in 2012, assuming they do not opt instead for a Medicare bonus for meaningful EMR use in 2011.

More regulatory relief on the way?

The softening of the e-prescribing requirements is part of the Obama administration's initiative to provide regulatory relief across the federal government. Dept. of Health and Human Services officials are considering revising several of its regulations over the next two years. CMS also will identify and address conflicting requirements between the Medicare and Medicaid programs.

An initial review of the rules has determined that some regulations appear to be redundant and unhelpful, said Jack Lew, director of the White House Office of Management and Budget.

"It will be asked if some of these actually benefit patients or are they a matter of bureaucratic, anachronistic rules," Lew said.

The Medicare agency already has gathered input on revising potentially burdensome rules identified by the AMA and other members of organized medicine. They include:

  • Requirements to provide translators for Medicare and Medicaid patients with hearing impairments or limited English proficiency.
  • Misaligned incentive programs, such as EMR meaningful use and the physician quality reporting system.
  • Overlapping claims reviews by auditors, such as Medicare administrative contractors and recovery audit contractors.
  • Various Medicare documentation requirements.
  • The prohibition on the use of Medicare consultation codes.
  • Burdensome Medicare enrollment requirements.

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Are you already exempt?

Only certain physicians and other health professionals are eligible to earn Medicare electronic prescribing bonuses. For those eligible, failure to e-prescribe in 2011 will trigger a 1% payment reduction in 2012, unless they also obtain special hardship waivers. Medicare defines an eligible professional as meeting all three of the following criteria:

  • Is a physician, nurse or therapist with prescribing privileges as of June 30.
  • Has at least 100 instances of eligible patient encounters for e-prescribing, such as an office evaluation and management visit, between Jan. 1 and June 30.
  • Has at least 10% of total Medicare charges associated with eligible patient encounters.

Source: Centers for Medicare & Medicaid Services

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How to comment

The Centers for Medicare & Medicaid Services will accept comments on the proposed changes to the Medicare electronic prescribing incentive program until July 25. Comments can be submitted:

  • Online by following the instructions for submitting comments (link). Enter keyword CMS-3248-P for the document file code.
  • By regular mail addressed to Centers for Medicare & Medicaid Services, Dept. of Health and Human Services, Attn: CMS-3248-P, P.O. Box 8013, Baltimore, MD 21244-8013.

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