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CMS Announces Proposed Changes to eRX Incentive Program

June 3, 2011

Authors: Joan W. Feldman, Vincenzo Carannante, William J. Roberts

On June 1, 2011, CMS issued a proposed rule (the “Proposed Rule”) that would expand the scope of the Medicare Electronic Prescribing Incentive Program (the “eRX Incentive Program”) established by the Medicare Improvements for Patients and Providers Act of 2008 (“MIPPA”).  As background, MIPPA is a CMS incentive program that began on January 1, 2009 for eligible professionals (“EPs”) who are successful electronic prescribers.

Pursuant to the eRX Incentive Program, in addition to incentives, Medicare imposes penalties in the form of Medicare Part B Physician Fee Schedule reductions (the “Penalty”) for EPs who do not meet specified electronic prescribing thresholds.  For example, EPs who do not send at least ten (10) prescriptions electronically by June 30, 2011 will receive a 1% Penalty in 2012 on their fees, and EPs who do not send at least twenty-five (25) prescriptions electronically in 2012 will receive a 1.5% Penalty in 2013 on their fees.  While the eRX Incentive Program currently contains a list of “hardship exemptions,” the Proposed Rule, adds the following new hardship exemptions provided the EP:

  1. registers to participate in the Medicare or Medicaid Electronic Health Record (“EHR") Incentive Program and adopt certified EHR technology;

  2. is unable to electronically prescribe medication due to local, state, or federal law (e.g., EPs who prescribe a large volume of narcotics, which may not be electronically prescribed in some states);

  3. experiences limited prescribing activity (e.g., a Nurse Practitioner who does not write prescriptions under his or her own National Provider Identifier); or

  4. experiences insufficient opportunities to report the relevant electronic prescribing measure due to limitations of the measure’s denominator (e.g., EPs such as surgeons that do not normally write prescriptions associated with any of the types of visits included in the eRX measure’s denominator).

Pursuant to the Proposed Rule, if an EP is successfully participating in the EHR Incentive Program, they will qualify for an eRX Incentive Program hardship exemption.  The Proposed Rule also amends the eRX Incentive Program to recognize EHR technology certified under the Medicare or Medicaid EHR Incentive Program as meeting requirements for “qualified” systems under the eRX Incentive Program. The Proposed Rule extends the deadline for EPs who wish to submit hardship exemption requests from June 30, 2011 to October 1, 2011.  Comments on the Proposed Rule are due by July 25, 2012.

If you have any questions, please contact any of the members of Shipman & Goodwin's Health Law Practice Group.

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