Under pressure from a variety of stakeholders, CMS recently published a notice of public rule making (NPRM) which contains some modifications to the e-Rx incentive program aimed at reducing the number of providers they will penalize in 2012. Recall that the existing program requires one of the following to occur to avoid a 1% across the board reduction in the provider’s Medicare part B allowable for all services provided in 2012:
• Send a script electronically for ten part B beneficiaries during an encounter defined by the CPT codes in the measures denominator between Jan 1, 2011 and June 30, 2011. The applicable CPT codes for nephrologists are office based E & M codes. To receive credit you must also let CMS know the scripts were sent by putting the eRx G-code on the claims you submit to CMS for these ten encounters.
• Have fewer than 100 denominator encounters with part B beneficiaries during the first six months of this year (again office based E & M encounters are essentially what will be counted for the typical nephrologist).
• Receive less than 10% of your total part B allowable charges from CPT codes in the denominator of the measure (most interventional nephrologists avoid the penalty here since a very small fraction of their total part B charges originate in the office).
• Practice in a setting with limited access to broadband Internet.
• Practice in a setting with limited access to pharmacies capable of receiving electronic prescriptions.
The last two items on the list are considered hardship exemptions and require submitting a G-code with a part B claim one time during the first six months of this year.
What’s new in the NPRM?
First, the existing exclusions identified above remain intact including the methods of communication to CMS through June 30, 2011. In the NPRM, however, CMS proposes extending the deadline for reporting a hardship exemption to October 1, 2011. The expectation is that this reporting will occur via a secure portal. If the portal is not ready in time, reporting will occur through the mail.
In addition to extending the deadline, CMS proposes four new hardship exemptions:
1. EPs Who Register to Participate in the EHR Incentive Programs and Adopt a Certified EHR
Demonstrating meaningful use would constitute an exemption from the e-Rx penalty. Specifically the NPRM states that providers requesting a hardship exemption within this category will attest that he or she either has purchased a certified EHR or has a certified EHR available for immediate use and that the provider intends to use the EHR to qualify for a Medicare or Medicaid EHR incentive for payment year 2011.
2. Inability to Electronically Prescribe Due to Local, State, or Federal Law or Regulation
To the extent that local, state, or Federal law limits or prevents the provider who otherwise has general prescribing authority from electronically prescribing, CMS would permit such providers to request an exemption from the 2012 penalty. Potential examples where this exemption would apply include providers who prescribe a large volume of narcotics or providers practicing in states that prohibit or limit the transmission of electronic prescriptions via a third party network such as SureScripts.
3. Limited Prescribing Activity
A provider with prescribing privileges who either does not prescribe or infrequently prescribes in his or her practice yet still meets the 10% threshold for the payment adjustment would be able to request a hardship exemption. Examples here include, a Nurse Practioner who may not write scripts under his or her NPI, a physician who decides to let his or her DEA registration expire, or the provider who writes fewer than ten prescriptions between Jan 1 and June 30, 2011.
4. Insufficient Opportunities to Report the Electronic Prescribing Measure due to Limitations in the Measure’s Denominator
A provider who does not have sufficient opportunity to report the e-Rx measure because of the limitations of the e-Rx measure’s denominator would be permitted to request a hardship exemption. While such providers may meet the 10% payment threshold and may have at least 100 denominator eligible visits during the first six months of the year, they may not be able to report e-Rx activity at least ten times because the bulk of their prescribing activity occurs in circumstances not accounted for by the measures denominator. The example sighted here is the surgeon who writes the majority of his or her prescriptions in the hospital or surgery center setting.
What impact will we see in the nephrology community if the proposed rule comes to fruition? I think the impact will be minimal at best. Item 1 above partially corrects a longstanding deficiency by recognizing that if a provider demonstrates meaningful use in 2011 he or she is certainly a successful e-prescriber. The partial piece here is the provider still must request the exemption. (CMS should know who has demonstrated MU shouldn’t they?) Item 4 may apply to nephrologists who do not write scripts in the office but do in other venues of care like the hospital or the dialysis facility. (Interventionalists are typically excluded by the 10% payment threshold.) Item 3 may impact mid-level providers working in a nephrology practice if they are seeing patients in the office setting, otherwise I doubt this one will affect the practice of nephrology. Item 2 is a puzzle to me. I am not aware of circumstances where a state prohibits or limits e-prescribing but they must exist if this made it into the NPRM. The typical nephrologist is unlikely to fall into the large volume narcotic bucket identified in item 2.
The NPRM comment period will last 60 days and will be followed by a final rule. Do you have comments to add to this conversation? We’d love to hear them.