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Electronic Prescribing: Anesthesiologists Will Soon Be Able to Request Their Exemptions

September 6, 2011

A. How to Request an Exemption from the e-Prescribing Requirement

The Centers for Medicare and Medicaid Services (CMS) released the Final Rule on Changes to the Electronic Prescribing (eRx) Program on August 31, 2011. Physicians who did not submit the eRx code on ten claims for patient visits between January 1 and June 30, 2011 are subject to a 1-percent payment penalty beginning on January 1, 2012.  (See Most Anesthesiologists Will Be Exempt From Medicare Electronic Prescribing Penalties, ABC Alert, June 6, 2011.)  Remember: only those e-prescribers who have at least 100 cases (that is, claims for patient services) containing an encounter code that falls within the denominator of the eRx measure for dates of service between January 1, 2011 and June 30, 2011 come within the eRx requirement, and only if ten percent or more of the e-prescribers’ total Medicare allowed payments come from those outpatient visit codes.

The Final eRx Rule adopted all four hardship exemptions described in the proposed rule, bringing the total number of hardship exemptions to six:

  1. Eligible practices in a rural area without sufficient high-speed Internet access;
  2. Eligible practices in a rural area without sufficient participating pharmacies;
  3. Eligible professionals who register to participate in the Medicare or Medicaid electronic health record (EHR) incentive programs and adopt certified EHR technology;
  4. Inability to prescribe electronically due to local, state, or federal law or regulation;
  5. Limited prescribing activity; and
  6. Insufficient opportunities to report the eRx measure due to limitations of the measure's denominator

The last three exemptions are those on which most anesthesiologists and pain specialists will rely.  The exemption based on laws or regulation was intended to cover eligible professionals (EPs) who mainly prescribe narcotics but are barred by state or federal law from submitting such prescriptions electronically.  This will apply to numerous pain physicians.  “Limited prescribing activity” means that the EP prescribed fewer than 10 prescriptions (electronic or paper) between January 1st and June 30th.   “Insufficient opportunities to report the eRx measure due to limitations of the measure's denominator” refers to the finite list of visit codes together with which the eRx measure may be reported.  Hospital visits, for example, are not on the list, so a surgeon or anesthesiologists might write enough pain prescriptions while rounding post-operatively to be required to e-prescribe ten times in connection with other visits, were it not for this exemption.

To apply, EPs must request one (or more, if applicable) exemptions via a forthcoming Web-based tool and no later than November 1, 2011.  Group practices may designate a single “contact person” who can request exemptions on behalf of the group and attest to the accuracy of the information presented in the application.  Groups will need to submit a letter; CMS will not be able to accept group requests through the Web portal.  Individual EPs can only use the Web-based tool and must apply personally, not through staff. Thus all solo practitioners will need to request the exemption by going to the portal themselves.  This function cannot be delegated other than in a group practice.

All requests, whether through the future Web-based tool or sent through the U.S. mail, must contain the following:

CMS will decide whether to allow requested exemptions on a case-by-case basis. There is no appeal or formal avenue for reconsideration of any denial.

The odds are that CMS will be unable to process every application received close to the November 1st deadline, depending on the number of physicians and other EPs who request exemptions.  Applications that are not determined before the end of the year may result in reprocessing of claims paid in early 2012 at the reduced rate (99% of allowed amount).  Check http://www.cms.gov/ERxIncentive/ periodically for instructions on how to access the Web-based tool and request   exemptions.  ABC will work with our clients to submit their requests, and we will also advise readers the promised instructions and tool appear on the CMS website.

Note that – even if you are subject to the penalty for the first half of 2011 -- there is still time to receive a one-percent Medicare bonus by successfully reporting 25 e-prescriptions by December 31, 2011. Writing 25 e-prescriptions by December 31st will also will prevent a 2013 eRx penalty. 

B.  ASA, MGMA File Comments on 2012 Medicare Fee Schedule Rule

The sixty-day period to submit “comments” to CMS on the proposed Physician Fee Schedule rule for 2012 has just expired.  On August 30, 2011, ASA, the AMA, MGMA and many other organizations (not including AANA) filed their comment letters with the Agency.  We note some of the highlights here to give our readers a sense of the issues on which their professional associations are focusing their attention – and that those associations may, or may not, influence.

We reviewed the proposed Fee Schedule rule, which was published in the Federal Register on July 1, in our July 11, 2011 Alert.  Then, as now – and for the foreseeable future, until the problem is solved – the 800 pound gorilla is the Sustainable Growth Rate (SGR) formula, its effect on physician payment rates, and the mounting system costs of dropping the formula once and for all. 

The proposed rule calls for a 29.5 percent cut in the conversion factor, which would translate to a national average anesthesia conversion factor of less than $15.00.   This rate, which is lower in absolute dollars than the conversion factors of the mid 1990s, is obviously untenable.  MGMA pointed out in its comment letter that total operating costs for each full-time equivalent physician have increased 51 percent since 2001, while Medicare fee for service payment levels have stagnated.  Informing CMS of the unfairness and the consequences of conversion factor decreases may inspire CMS to weigh in, but repealing the SGR and its automatic operation is something that only Congress can do.

As noted in our July 11 Alert, too, “Since its 1997 enactment into law, the SGR would have created a negative fee schedule update 11 times. Congress has intervened every year except for 2002 and passed legislation to postpone the impact of the formula. Last year, for example, the anesthesia CF would have been $15.81 had the SGR postponement not passed Congress in December. Washington widely anticipates that some sort of legislative fix will happen again this fall.”

With respect to the eRx incentive program, MGMA urged CMS to harmonize the requirements of the standalone eRx program with the Electronic Health Record (EHR) Incentive Program and the Physician Quality Reporting System.  CMS made one change, allowing participation in the eRx program through eRx technology that is either “qualified” by virtue of meeting the eRx program’s own standards or “certified” for use in the EHR program.   MGMA would have gone much farther, having concerns “with the redundant nature of CMS reporting programs and the agency’s reliance on claims-based clinical data collection.  We strongly urge CMS to collect e-prescribing data directly from the Part D program, thus eliminating the necessity for eligible professionals … to separately collect and report this information.”

One of the major topic’s in ASA’s letter was the pending value-based payment modifier. There are no measures currently in place for the payment modifier program, and ASA has asked CMS not to apply the modifier to anesthesiologists in 2015.

Responding, nevertheless, to CMS’ soliciting suggestions for clinical measures to use in developing the payment modifier, ASA urged the Agency to start with PQRS Measures #30 (Timely Administration of Prophylactic Antibiotics) and #193 (Perioperative Temperature Management).  ASA also invited CMS to “consider” adoption of measures for the prevention of ventilator-associated pneumonia, for comprehensive planning for chronic pain management, for management of postoperative hypothermia, for antibiotic redosing and for minimizing post-operative nausea and vomiting. 

ASA informed CMS that the House of Delegates will be reviewing a new measure in the domain of care coordination which would be “focused on post-anesthesia transfer of care protocols from the procedure room to the intensive care unit.”  ASA also reiterated and elaborated on its concept of a coordinated surgical home model corresponding to the “medical home” on the primary care side.  We quote the relevant paragraph in full because it describes with some detail how anesthesiologists are suited to managing risk across the perioperative setting:

Why should anesthesiologists play a leadership role in a surgical home? Anesthesiologists routinely interact with physicians and other providers from virtually all care settings and assess and monitor the patient from an overall perioperative perspective; thus, anesthesiologists are ideally suited to effectively assess and manage risk across the full continuum of the perioperative setting. Anesthesiologists partner with hospitals, proceduralists, and surgeons in selecting cost-effective implants and pharmaceuticals to provide better quality of care at a lower cost. Further, anesthesiologists serve as physician managers and coordinators of operating and procedure rooms. In addition to managing patient flow and triage through the surgical experience, anesthesiologists evaluate and help optimize patients for proposed operative procedures. For those situations where multiple pathways of care are available, anesthesiologists play a central role in helping patients determine the most appropriate course of care. Evidence-based Cost Utility Analysis can play a role in informing the patient’s decision-making. Some patients may elect to have less expensive conservative management after such counseling, creating savings for Medicare. These savings are directly attributable to the anesthesiologist’s participation. Additional savings would be derived from decreased testing and consultations, through pre-operative evaluations performed in anesthesiologist-run Pre-Anesthesia Testing (PAT) clinics, as well as reduced hospital lengths of stay and hospital readmissions arising from 1) selection of appropriate candidates for surgery, including interventions with those who are highly unlikely to benefit, 2) identification of optimal timing for surgical interventions, to avoid rescheduling, 3) reduction of complications such as surgical or catheter-related infections, poor perioperative glycemic control, and postoperative nausea and vomiting that increase length of stay or necessitate admission following outpatient surgery, and 4) improved perioperative management of pain and anxiety to ensure the best possible patient care experience.

Additional issues addressed in ASA’s comment letter include potentially misvalued services under the Physician Fee Schedule, the PQRS and Medicare Teleheath Services (including smoking cessation, CPT™ codes 99406 – 99407).    If you would like to read either ASA’s or MGMA’s full letters, please refer to the documents hyperlinked above.  If you have any suggestions for future Alert topics, we hope that you will let us know.

With best wishes,

Tony Mira
President and CEO