Making the case for e-prescribing

Medicare approves e-prescribing for inexpensive or routinely purchased DME
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Monday, April 29, 2019

Recently, Medicare determined to accept e-prescribed orders for inexpensive or otherwise routinely purchased DME. Historically, Medicare has required fax, pen and ink, or electronically maintained images of signed orders.

However, e-prescribing offers a confidential, secure, accurate and error-free method of communicating doctors’ orders. Moreover, e-prescribing has been widely adopted by physicians. By April 2014, fully 70% of physicians were e-prescribing, using an electronic health records network on the Surescripts platform. This percentage has only increased since then.

e-prescribing has long been accepted by the Medicare program for use with prescriptions of Medicare Part D drugs. Congressional and CMS policies, in general, favor e-prescribing. Incentives toward e-prescribing were included in the Medicare Modernization Action of 2003 and in the Medicare Improvements for Patients and Providers Act of 2008. As stated by CMS, “e-prescribing is a prescriber’s ability to send an accurate, error free and understandable prescription directly to a pharmacy from the point-of-care.” According to CMS, e-prescribing “is an important element in improving the quality of patient care.”

However, these enactments and pronouncements were, strictly speaking, made in the context of prescriptions of drugs under Medicare Part D. Prescriptions, that is to say, doctor orders, for inexpensive and routinely purchased DME lagged behind. This was the case even though CMS Administrator Seema Verma called for an end to fax machines in physician offices by 2020, and for digital information to replace the current use of fax machines in physician offices to send patient information.

We urged CMS to extend its policy in favor of e-prescribing to doctor orders for inexpensive and otherwise routinely purchased DME. CMS responded that it was up to the reviewing Medicare contractors whether to accept e-prescribing in medical review of doctor orders.

Following up on this response from CMS, we approached the DME Medicare Administrative Contractors for all four DME Regions to elicit their determinations regarding e-prescribing for DME.

e-prescribing software generally has been certified under the Office of the National Coordinator for Health Information Technology’s Health IT Certification Program. As such, the software meets the strict privacy and security requirements set forth in federal regulations, which assure the integrity of the doctor order. And, in fact, the integrity assurances are much more robust than they are for a pen and ink or a faxed doctor order.

Specifically, the technology verifies against a unique identifier that a user seeking access (whether at the doctor’s office or at the supplier) is the one claimed. The technology generates an audit log with respect to every prescription entered by a prescriber. The audit log is always enabled and cannot be disabled by any user. Actions and statuses recorded in the audit log cannot be changed, overwritten or deleted, and the technology can detect when the audit log has been altered. To the extent any information in the log is changed, the technology records when any information is changed, as well as the date and time of the change.

Further, all prescription information is encrypted, not only strongly protecting patient privacy, but also rendering any meaningful alteration exceptionally difficult (one would have to have the decryption key, decrypt the data, alter it, re-encrypt it, then restore it to its previous memory address). It is hardly possible, if not impossible, to tamper with doctor orders that use an e-prescription system. The technology is also compliant with HIPAA.

E-prescribing technology for doctor orders is more tamper-resistant and tamper-evident than a pen and ink or faxed doctor order. The technology is more resistant to falsification than a pen and ink or a faxed doctor order. The doctor orders captured by the technology are more auditable than traditional pen and ink or faxed doctor orders.

Finally, the e-prescribed orders contain all of the required elements of a doctor order. They include the beneficiary name, a description of the item in accordance with the Medicare requirements, the date of the order, and the physician’s digital signature.

Presented with these factors and policy considerations, as well as the flexibility from CMS to make their own determinations in the matter, the DME MACs for all four regions approved e-prescribing for inexpensive or otherwise routinely purchased DME. Now, suppliers may accept e-prescriptions from appropriately qualified platforms.

The use of e-prescriptions will be of significant benefit to suppliers of inexpensive or otherwise routinely purchased DME. e-prescribing offers enhanced efficiencies in the processing of orders, as well as in the storage, retrieval, documentation, verification, and audit of orders.

William B. Eck is a partner in the Washington, D.C. office of Seyfarth Shaw LLP. Mr. Eck focuses his practice on transactional and regulatory health law matters, and is Board Certified in Health Law by the Florida Bar. Bill can be reached at weck@seyfarth.comand at (202) 772-9721.