2011 E-Prescribing Incentive Program Requirements
CMS proposes to continue with the 2010 e-prescribing reporting requirement in 2011, which is to require eligible physicians to report on 25 services in 2011 involving electronic prescriptions in order to qualify for incentives. We appreciate CMS’ consideration of the AMA’s recommendation to minimize the e-prescribing reporting burden. We support CMS’ proposal that for 2011, eligible physicians report the e-prescribing G-code, G8553, only twenty-five times for applicable Medicare office visit and service codes in order to receive the e-prescribing incentive, which totals up to one percent of their Medicare allowable charges. In addition, the AMA agrees with CMS’ proposal to allow several mechanisms for physicians to submit e-prescribing information (e.g., vis a vis Medicare Part B claims, a qualified registry, or a qualified EHR product). Please also refer to our comments on requirements for qualified registries and the EHR reporting option under the PQRI section. We remain committed to working with CMS to pursue significant outreach to the physician community on the 2011 e-prescribing incentive program details.
2012 and 2013 E-Prescribing Penalty Programs
CMS has also proposed criteria for applying penalties in 2012 and 2013 for physicians and group practices that are deemed to be unsuccessful e-prescribers. The law that established the Medicare e-prescribing incentive program, the “Medicare Improvements for Patients and Providers Act of 2008” (MIPPA) (P.L. 110-275), requires a penalty phase for eligible physicians who do not e-prescribe during 2012 through 2014. According to MIPPA, physicians who are eligible but choose not to participate in the 2012 or 2013 Medicare e-prescribing incentive program and do not qualify for a hardship exemption would be subject to a one percent Medicare payment reduction based on their Medicare Part B allowed charges (1.5 percent in 2013). MIPPA does provide the Secretary of HHS with the authority to exempt eligible physicians from penalties for hardship reasons. CMS’ proposal is to levy financial penalties in 2012 and 2013 against physicians who fail to report the e-prescribing measure ten times during the first six months in 2011.
We strongly oppose CMS’ proposal to levy financial penalties in 2012 and 2013 against physicians who fail to report the e-prescribing measure during the first six months in 2011 (January 1, 2011 through June 30, 2011). CMS’ proposal conflicts with the intent of the law, which clearly delays penalties until 2012. The law states that the penalty would apply “with respect to covered professional services furnished by an eligible professional during 2012, 2013, or 2014.” Applying penalties to services rendered in 2011 conflicts with the above-mentioned language in the law. Congress clearly intended to provide CMS as much flexibility as possible to come up with a penalty program that is fair and reasonable. Reviewing e-prescribing activity during the first six months of 2011 in order to assess penalties in 2012 and 2013 is an imbalanced approach. CMS has yet to produce the 2009 e-prescribing data and to address whether there were any problems in e-prescribing reporting. Inflicting financial penalties in 2012 and 2013 based on 2011 e-prescribing activity without fully assessing the 2009 and 2010 program, including adoption and use rates, is unfair and unreasonable. We insist that CMS revise the 2012 and 2013 penalty criteria. Financial penalties should only be levied in 2012 and 2013 against Medicare eligible physicians who fail to qualify for an exemption and fail to e-prescribe ten permissible prescriptions by the end of 2012 or by the end of 2013. Unlike CMS’ proposal, our recommended approach is entirely consistent with the intent of the law.
CMS proposes two narrow categories for exempting eligible physicians from the e-prescribing penalty: eligible physician/group practice practices in rural area with limited high speed internet access; and eligible physician/group practice practices in an area with limited available pharmacies for e-prescribing. Although we support these exception categories, we strongly recommend that CMS add more exception categories.
CMS has failed to consider that many physicians postponed purchasing an e-prescribing software or application in order to take advantage of Medicare and Medicaid EHR incentives prescribed by the “American Recovery and Reinvestment Act” (ARRA) (P.L. 111-5). ARRA was signed into law in February 2009, less than eight months after the enactment of the e-prescribing incentive program, and authorizes incentives for up to five years to eligible physicians who demonstrate meaningful use of an EHR, that includes e-prescribing functionality. The Medicare e-prescribing incentive program and the Medicare EHR incentive program are at odds with each other. According to ARRA, physicians who choose to participate in the Medicare EHR incentive program can not participate in the Medicare e-prescribing incentive program simultaneously. In order to avoid an e-prescribing penalty, physicians would have to invest in a stand alone e-prescribing application along with a certified EHR system which would pose a significant financial, administrative hardship on them. Physicians should therefore, not be penalized because it makes more economic, practical sense to choose to participate in the EHR incentive program and for investing in an electronic system that performs more than just e-prescribing.
There is also flexibility in the EHR incentive program on the start date for EHR use. Physicians are eligible for incentives even if they wait until 2014 to take part in the EHR incentive program. Another critical factor that needs to be considered is the fact that most physician practices are small and many of these physicians, like the rest of the population, are reaching retirement age in large numbers. It will be economically burdensome for physicians who intend to retire in the next five years to install and utilize an e-prescribing system as they continue to face looming Medicare payment cuts. We are also concerned that many of these physicians may decide to close their Medicare panels or opt out of Medicare to avoid penalties during the end stage of their clinical careers, which would adversely affect access to care for our nation’s elderly and disabled. Physicians who are currently eligible for Social Security retirement benefits or will be eligible for Social Security retirement benefits by 2014 should have the opportunity to apply for an exemption. In general, a person must be at least age 62 to start collecting Social Security retirement benefits. Another exception category should be for physicians who prescribe controlled substances so that they have adequate time to purchase and install Drug Enforcement Administration (DEA) compliant e-prescribing applications, which are not yet readily available.
In addition to CMS’ above-mentioned proposed exemption categories, we strongly recommend that CMS exempt other categories of eligible physicians from the 2012 and 2013 penalties, including: physicians who plan on participating in the EHR incentive program beginning in 2012, 2013, or 2014; physicians who are currently eligible for Social Security benefits or will be eligible for Social Security benefits by 2014; and physicians who prescribe controlled substances and are working to comply with the new DEA e-prescribing requirements. A “G” code should be designated for each of these additional exception categories and physicians should be able to report the applicable “G” code(s) once in 2012 and in 2013 in order to be exempt from the 2012 and 2013 penalty programs.