Below is a list of updates to clarify common issues CMS has heard from physicians and other health care professionals regarding the Medicare Electronic Prescribing (eRx) Incentive Program and the 2012 eRx payment adjustment.

Statutory Authority/Background

CMS is required to adjust the payments of eligible professionals who are not successful electronic prescribers beginning in 2012. This requirement is outlined in Section 132 of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA). CMS listed the requirements for being a successful e-prescriber for purposes of avoiding the 2012 payment adjustment in the 2011 Physician Fee Schedule final rule. In February 2012, all eligible professionals who did not meet these requirements were sent a letter notifying them of this fact.

Significant Hardship Exemption Requests

In response to stakeholder feedback, CMS also published a standalone eRx rule in September 2011 to provide additional circumstances under which eligible professionals would qualify for hardship exemptions. Eligible professionals initially had until November 1, 2011, to submit a request for a hardship exemption for the 2012 eRx payment adjustment via the newly-created Quality Reporting Communication Support Page; this deadline was later extended to November 8, 2011. CMS finished its review of these requests in February 2012 and continues to notify requestors via email whether their request was approved or denied.

Questions and Concerns

Although there is no appeal or review process established for the eRx Incentive Program and payment adjustment, CMS encourages eligible professionals with questions or concerns about the eRx payment adjustment and hardship exemption requests to contact the QualityNet Help Desk. Through the QualityNet Help Desk, CMS is working with eligible professionals and CMS-selected group practices that have questions about eRx payment adjustments and/or hardship exemption decisions. CMS is handling all hardship exemption requests and any questions or concerns on a case-by-case basis. Contact the QualityNet Help Desk if you have issues relating to the eRx payment adjustment and/or the rationale for denial of your hardship exemption request. The QualityNet Help Desk can be reached Mon – Fri, 7 am to 7 pm CMT, at (866) 288-8912 or QNetSupport@sdps.org.

2013 & 2014 eRx Payment Adjustment

Please note that payment adjustments under the eRx Incentive Program run until 2014. For information on how to avoid the 2013 and 2014 eRx payment adjustments, please visit the Electronic Prescribing Incentive Program webpage and review MLN Matters Article #SE1206.

On the first day of oral arguments in the Supreme Court case against the federal health reform law, justices seemed supportive of the idea that they can rule on the law now, rather than defer judgment until after its penalties take effect. The Supreme Court has posted audio transcripts and a written transcript of Monday's proceedings on its website.

Monday’s Arguments

The nearly 90 minutes of arguments on Monday focused on whether the tax anti-injunction act— which states that cases cannot be brought until a plaintiff has paid a tax—prevents the court from ruling until 2015. Both opponents of the law and the White House have argued that the law does not apply and have urged the Supreme Court to hear the case now rather than wait.

Arguing for the Anti-Injunction Act

In three minutes of opening remarks, Robert Long, the court-appointed lawyer who is making the argument that the anti-injunction act applies, described the health reform law as a “pay first, litigate later” law. He noted that the penalty for not purchasing health coverage under the individual mandate carries all the hallmarks of a tax, including that it will be assessed and collected by the Internal Revenue Service.

Arguing Against the Anti-Injunction Act

According to Wall Street Wire, U.S. Solicitor General Donald Verrilli, representing the defendants, faced “less hostile questioning” than Long, which could indicate that the court is likely to rule that the anti-injunction act does not apply in this case.

Tuesday’s Arguments

On Tuesday, the court is slated to hear oral arguments on the constitutionality of the reform law's individual mandate. Verrilli will represent the federal government, while Paul Clement will represent the states and Michael Carvin will represent the National Federation of Independent Business. Click here to hear Tuesday’s oral arguments.

Source: California Healthline, March 27, 2012.

This week, the court ruled that California Department of Health Care Services violated disclosure law in 2011 by refusing to provide background information on proposed Medi-Cal payment cuts with the California Medical Association (CMA).

The official signed judgment states that “documents exchanged between DHCS and the federal Centers for Medicare & Medicaid Services… are not subject to the deliberative process privilege claimed by DHCS.” The court also ruled that “the relationship between DHCS and CMS is fundamentally different from that involved in cases which have recognized a deliberative process privilege and any benefit derived from keeping discussions confidential is substantially diminished in this context.” The court ordered DHCS to release the documents that it gave to federal officials. The state has 20 days to appeal the decision or ask for additional time to explain why the documents should not be disclosed.

Background

In October 2011, CMS approved the state's plan to reduce certain Medi-Cal payments by 10%. State officials said that the cuts would save $623 million. In February, U.S. District Court Judge Christina Snyder granted a preliminary injunction to block the rate cuts on the basis that they could cause irreparable harm. Last year, CMA, California Hospital Association, and California Pharmacists Association filed a Public Records Act request to gain access to the state's supporting evidence that the Medi-Cal cuts would not harm beneficiaries' access to care. DHCS denied the request, saying that such documentation needed to remain private so the agency could "engage in candid policy discussions" with federal officials.

New policy is intended to prevent abuse of the term "board eligible" by restricting how long physicians can wait before becoming certified in their specialty.

Physicians no longer have an indefinite amount of time to achieve board certification. A new American Board of Medical Specialties (ABMS) rule now requires doctors to be certified three to seven years after completing residency training. Time limits will vary by specialty, with each of the ABMS 24 member boards to set policy by April 16.

The goal is to prevent confusion about the term "board eligible," said ABMS President and CEO Kevin B. Weiss, MD, MPH. ABMS and its member boards have never recognized the term. However, credentialing organizations have used it for decades to identify physicians who are becoming certified. Problems arise when physicians use the phrase to describe themselves when they are not actively pursuing board certification, Dr. Weiss said.

"There are a very small number of physicians who will maintain the status of board eligible for an extraordinarily long amount of time," said Daniel L. Barrow, MD, chair of the American Board of Neurological Surgery.

"It is dishonest, and it sends the wrong message to the public." Physicians who abuse the term do it to create the impression that they have equivalent status—or near-equivalent status—to board-certified physicians, said James C. Puffer, MD, president and CEO of the American Board of Family Medicine.

ABMS announced the policy in February, which is retroactive to January 1, 2012. Until now, the period between training and board certification was undefined, Dr. Weiss said. "This is to make it very clear to hospitals, health plans and other credentialers what is happening to that physician between completion of training and board certification," he added.

Click here to view the American Board of Medical Specialties board eligibility fact sheet.

Source: American Medical News, March 5, 2012.

As the number of electronic medical records increases, so do certain legal risks, medical liability experts say. Here are some common mistakes doctors make with EMRs and how attorneys recommend that physicians reduce their liability risks:

 

Mistake: EMRs allow users to move quickly through patient records, but cutting and pasting information makes it easy to paste incorrect information.

Recommendation: Refrain from copying and pasting EMR data, and be cautious when moving from one patient’s record to the next.

 

Mistake: Computer programs can help doctors make a differential diagnosis, but the templates don’t often include every possible symptom and corresponding medical condition.

Recommendation: Doctors should not become overly dependent on electronic diagnosis aids. Electronic systems are no substitute for hands-on diagnosis.

 

Mistake: Because EMRs allow physicians to move through patient charts much more quickly than paper charts, attorneys are noticing that some doctors are not being thorough when writing notes electronically.

Recommendation: Physicians should keep meticulous electronic notes on each patient and take time to document each chart.

 

Mistake: Some practices can fail to safeguard electronic patient data.

Recommendation: Practices should encrypt all information on computer devices and have policy that discourages employees from taking portable devices out of the office.

 

Mistake: A system may not clearly indicate changes to records.

Recommendation: Physicians should install systems that show transparency when modifications are made and/or have a program lockout period where no more modifications can be made to a record.

 

Mistake: Doctors may fail to follow notification requirements in the event of a data breach.

Recommendation: Be clear on what your state law requires when a data breach occurs, and make sure employees follow the rules immediately.

 

Mistake: Doctors may destroy or delete electronic records when a lawsuit is possible.

Recommendation: If doctors suspect they are being sued, they must preserve all electronic data related to the patient in question, including emails, phone messages and computer records.

Source: Attorneys Catherine J. Flynn and Michael Moroney of Weber Gallagher Simpson Stapleton Fires & Newby LLP in New Jersey; Reprinted from American Medical News, March 5, 2012.