Digital Debut

ASCs Face Challenges in Electronic Prescribing Requirements

A waiver process could lessen the burden on surgery centers

BY STEPHEN ABRESCH | MAY 2021

Since the first state electronic prescribing requirement came into effect in 2011 in Minnesota, most states have followed suit. By the end of 2021, 31 states will have laws in effect requiring electronic prescribing by healthcare providers. The pace of adoption has quickened in recent years: in 2021 alone, 17 states—Arkansas, Colorado, Delaware, Florida, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Missouri, Nevada, New Mexico, South Carolina, Tennessee, Texas, Washington and Wyoming—have electronic prescribing requirements taking effect, and in 2022, an additional three states—California, Maryland and Utah—will have their laws come into effect. While these requirements are focused on the provider, i.e., physicians, this has not saved ASCs in these states from experiencing headaches.

Electronic prescribing first came to the forefront through the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) of 2003, which in part intended to foster the adoption of electronic prescribing by requiring standards for interoperability and by providing grants to physicians to offset implementation costs. It took eight more years for the first state electronic prescribing requirement to come into effect. Minnesota led the way and required all prescribers to maintain an electronic prescription drug program for transmitting all prescriptions to “… improve quality outcomes and efficiency in healthcare,” according to the Minnesota Department of Health. However, Minnesota’s requirements were broad and lacked penalties to encourage compliance with the new requirements. Five years later, New York implemented a state law with similar electronic prescribing requirements with penalties for noncompliance. While the first two states to enact these requirements took a broad approach, many of the states that followed have focused more narrowly on the issue of substance abuse. Twenty-two of the 31 states with laws on the books at the start of 2021 require the use of electronic prescriptions for the prescribing of controlled substances only.

Despite the variation among states regarding exactly what prescriptions must be made electronically, the laws themselves are typically structured in a similar manner. They lay out which prescribed substances must be made electronically—controlled substances or all prescriptions—and specify the providers who are subject to these requirements. The presence or absence of a waiver process allows facilities, such as ASCs, to apply for a waiver from the state’s electronic prescribing requirements. Often these look similar from state to state, allowing providers to apply for a waiver in cases of economic hardship, technological limitations not reasonably within the control of the healthcare provider or other exceptional circumstances demonstrated by the provider. These waivers are far from the norm, however, as only eight of the 31 states that will have these requirements in effect by the end of the year include a waiver process: Connecticut, Delaware, Iowa, Massachusetts, Michigan, Oklahoma, Tennessee and Washington. And even though the laws impose the requirements on the provider, as opposed to the facility itself, ASCs can still find themselves in a bind if their physicians are unable to write prescriptions through the facility.

Why are the waivers so important for providers working in facilities like ASCs? Primarily because of the low penetration of electronic health record (EHR) technology at surgery centers. ASCA estimates that approximately 20 percent of surgery centers nationwide have EHR systems, compared to 95 percent or higher penetration in hospitals and physician offices. Given that electronic prescribing relies on the use of EHR technology, ASCs do not have the ability to easily implement an electronic prescribing system for their physicians to use if they are not using a wraparound electronic clinical documentation system in the first place. The reason ASCs lag hospitals and physician offices in terms of adoption of EHR technology is due, in large part, to the fact that ASCs have not been incorporated into federal programs that encourage and incentivize the use of healthcare information technology (HIT). Unlike hospitals and physician offices, ASCs are not federally required to have an EHR system and were excluded from the development of standards that designate HIT systems as certified EHR technology (CEHRT), which has slowed product uptake by ASCs. Additionally, while electronic prescribing is a measure within Medicare’s Merit-based Incentive Payment System (MIPS), clinicians who perform 75 percent or more of their covered services in ASCs are exempt from EHR-related measures.

“There is still a knowledge deficit about what type of entity has an EHR system,” says Gina Throneberry, ASCA’s director of Education and Clinical Affairs. The high penetration rate of EHR technology in hospitals and physician offices might mislead lawmakers to believe EHR is ubiquitous across all sites of service. However, physicians working in ASCs lack access to the technology needed to comply with state electronic prescribing laws, and it is on ASCA and ASCs to educate lawmakers about that fact.

As states continue considering the adoption of these requirements, Throneberry says that it is important that proposals include a waiver option, and that those options be as little of a burden as possible. While the norm for states that allow a waiver is to offer it on an annual, renewable basis, she opines, “It would be less of a burden to have the waiver signed once and then the provider notify the state regulatory entity if their e-prescribing situation changes in the future.”

Write Stephen Abresch with any questions.