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E-Prescription Final Rules

Stanley Feld M.D.,FACP,MACE

Physician participation in President Obama’s E-Prescription mandate has been poor. Physicians do not like mandates.

The new final rules were published in the Federal Register on August 30,2011, CMS added new "significant hardship" exemptions. The exemption qualifications were broadened. Physicians who qualify for exemptions will not be penalized starting January 1, 2012.

CMS also agreed to extend the application for exemptions one month until November 1,2011. The number of physicians who qualify for bonus has not been published. The number of physicians vulnerable for penalty has not been published. CMS hopes that many physicians will apply for the exemption.

In an August 10, 2008 blog post I warned that the E-Prescription program as written would not work as outlined.

 I said,

When is congress going to learn that punitive action is not a wise course to pursue against a vital workforce? Real incentives work. Bogus incentives always fail.

My e-prescription plan would provide physicians incentive to use the software because it would be free and driven by their patients demand. 

The U.S. Senate on July 9 passed legislation to revise several Medicare provisions and authorize incentive payments for use of electronic prescribing technology.

Please note the complexity of President Obama’s schedule. Physicians have learned that anything incomprehensible is an administrative trick to reduce reimbursement.

 Therefore, they do not participate. If they do not participate the incentive fails. It is similar to the art of war. You simply do not show up to fight.

The bill calls for Medicare incentive payments for e-prescribing of 2% in fiscal 2009 and 2010, 1% in 2011 and 2012, and 0.5% in 2013. Sec. 132. Incentives for electronic prescribing.

Physicians despise mandates. The questions that arose are:

 2% of what?

Will it cover my cost of installing an E-Prescription system?

What is the Obama trick play here?

Does the government want to develop an easy way of following my prescribing habits so they can reduce reimbursement?

The law

  1. Provides positive incentives for practitioners who use a qualified e-prescribing systems in 2009 through 2013.
  2.  Requires practitioners to use a qualified e-prescribing system in 2011 and beyond.
  3. Enforces of the mandate achieved through a reduction in payments of up to 2% to providers who fail to e-prescribe.
  4.  Prohibits application of financial incentives and penalties to those who write prescriptions infrequently.
  5. Permits the Secretary to establish a hardship exception to providers who are unable to use a qualified e-prescribing system.
  6. Requires more reporting by physicians. The increased reporting consists of any e-prescribing quality measures established under Medicare’s physician reporting system.

“Beginning in 2012, payments to physicians not electronically prescribing would be reduced by 1%, then 1.5% in 2013 and 2% in subsequent years.      

I believe congress is mistaken if they think this will work. It will be costly to the healthcare system and someone other than physicians will make some money. The plan will only generate more mistrust among physicians for the government.”

The old rules were confusing, cumbersome and duplicative. CMS published reasons for the easing of qualifications for exemptions.

 "After we published the 2011 Medicare Physician Fee Schedule Final Rule last fall, we heard about additional circumstances that could keep physicians and other health professionals from being successful e-prescribers," Patrick Conway, MD, chief medical officer and director of CMS' office of clinical standards & quality wrote in a blog post on the final e-prescribing rules.

 "For example," he wrote, "some providers weren't sure whether certified electronic health record technology that the Medicare and Medicaid EHR Incentive Programs require is also a 'qualified' electronic prescribing system as required by the Medicare eRx Incentive Program. [Other] providers brought up additional hardship situations that the 2011 MPFS final rule didn't address."

 The 2012 hardship exemptions in the final rule cover eligible professionals who:

  • Cannot electronically prescribe due to local, state, or federal law or regulation or have limited prescribing activity.
  • Are not a physician, nurse practitioner, or physician assistant as of June 30, 2011 and do not generally have prescribing privileges.
  • Are located in rural areas without sufficient high speed Internet access or in an area without sufficient available pharmacies for electronic prescribing.
  • Additionally, organizations that have already registered to participate in the Medicare or Medicaid EHR Incentive Programs and adopt certified EHR technology do not have to prove that they are successful e-prescribers, since that program already requires meaningful users have e-prescribing capabilities.

 CMS needs the cooperation of physicians. It also needs to save face for conceiving this complex, incomprehensible, bureaucratic mandate.

"The biggest issue was [that] the eligible professionals did not want to have to deal with the payment adjustment for 2012. We think there's an attempt here to do that. Given the current environment, the providers are still feeling squeezed overall. To have them go through the adjustment in 2012 really wasn't fair," she said.

 CMS is attempting to make it easier for providers to apply for exemptions. It has added an online tool to its site. Physician practices, however, still have to submit a written letter by November 1,2011 to receive the exemption..

If congress voted for my Ideal Electronic Medical Record it would avoid the barrier of high cost of physician entry into the program. 

An E-Prescription component could be integrated into the Ideal Electronic Medical Record solving two problems at one time. Logic has not prevailed thus far.

The opinions expressed in the blog “Repairing The Healthcare System” are, mine and mine alone.  



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