Last Updated: Oct 18, 2018
By Michael D.I. Siget, JD, MPA, PAMED's Legislative & Regulatory Counsel
As the 2017-2018 legislative session draws to a close, the Pennsylvania legislature was busy passing numerous bills, several of which may affect physician practices across the Commonwealth. Today, we will look at three specific bills that the governor has signed into law: e-prescribing, patient access to test results, and workers’ compensation.
HB 353, introduced by Rep. Tedd C. Nesbit, mandates that all Schedule II through V controlled substances, except when dispensed or administered directly to a patient by a practitioner or authorized agent, other than a pharmacist, to an ultimate user, shall be prescribed electronically.
This law replaces the traditional method of prescribing controlled substances to a patient, i.e. paper prescription pads. The rationale behind this bill is to reduce the diversion of controlled substances, as written prescriptions are more subject to being lost, stolen, or sold through drug diversion.
There are numerous exceptions to the electronic prescribing requirement, many of which the Pennsylvania Medical Society’s (PAMED) Government Relations’ team successfully lobbied for:
- Any situation determined by the Secretary of Health through regulations wherein electronic prescribing is not required.
- Prescriptions issued by a veterinarian.
- Circumstances when an electronic prescription is not available to be issued or received due to a temporary technological or electrical failure. In instances of a temporary technological failure, a practitioner is required to correct any cause for this failure within 72 hours, so long as the failure is reasonably within the practitioner’s control.
- Prescriptions issued by a practitioner and dispensed by a pharmacy located outside of this Commonwealth.
- Prescriptions issued by a practitioner or health care facility that does not have internet access or an electronic health record system.
- Prescriptions issued by a practitioner treating a patient in an emergency department or a health care facility under circumstances when the practitioner reasonably determines that electronically prescribing a controlled substance would be impractical for the patient to obtain a controlled substance prescribed by electronic prescription or would cause an untimely delay resulting in an adverse impact on the patient’s medical condition.
- Prescriptions issued for patients enrolled in a hospice program or for a patient residing in a nursing home or residential health care facility.
- Prescriptions issued for controlled substance compounded prescriptions and prescriptions containing certain elements required by the FDA or any other governmental agency that are not able to be accomplished with electronic prescribing.
- Prescriptions issued pursuant to an established and valid collaborative practice agreement between a practitioner and a pharmacist, a standing order, or a drug research protocol.
- Prescriptions issued in an emergency situation pursuant to Federal or State law and regulations of the Department of Health.
- Prescriptions issued under circumstances where the pharmacy that receives the prescription is not set up to process electronic prescriptions.
- Prescriptions for controlled substances that are not required to be reported to the PDMP system administered by the Department of Health.
Any practitioner, pharmacy, or health care facility that does not meet one of the exceptions above but is unable to timely comply with the electronic prescribing requirements may petition the Department of Health for an exemption from the requirements based upon economic hardship, technical limitations, or exceptional circumstances. The Department of Health is required to adopt rules establishing the form and specific information that must be included in a request for an exemption. The exemption may not exceed one year from the date of approval but may be renewed annually upon request and approval. The Department, in its discretion, may establish additional exemptions through the regulatory process.
It is important to note that HB 353 deems that prescriptions generated on an electronic system and printed or transmitted via facsimile are not considered electronic prescriptions and thus will not meet the requirements of this act.
PAMED’s Government Relations’ team also successfully lobbied for restrictions on any penalties that may be levied under this law. Violations in the form of civil money penalties may be assessed by the Department of Health based upon the number of violations in a given calendar year. Violations may not carry over into a new calendar year and instead reset each calendar year.
- Violations 1 through 10 - $100 per violation.
- Subsequent violations after the 10th violation - $250 per violation.
Total fines each year may not total more than $5,000. The Department of Health may not report these violations to the state licensing boards and the violations may not be considered disciplinary action that needs to be reported by the practitioner as a violation to the practitioner’s licensing board. Any practitioner fined under this law may appeal the imposition of the fine.
HB 353 was signed into law by Gov. Wolf on Oct. 24, 2018 as Act 96 of 2018.
The act will take effect on Oct. 24, 2019. PAMED will provide updates on this legislation as the Department of Health provides more guidance.
Patient Test Results
HB 1884, introduced by Rep. Marguerite Quinn, requires entities performing a diagnostic imaging service to directly notify the patient or patient’s designee when, in the judgment of the entity performing the test, a significant abnormality may exist. The notice must include the name of the ordering practitioner, the date the test was performed, the date the results were sent to the ordering practitioner, and contact information necessary for the patient to obtain a full report.
The notice must also include an explanation that the notification is being sent because a determination has been made that further discussions of the patient’s test results are warranted and that it is recommended that the patient contact his or her practitioner to discuss the results of the test.
The following tests or services are exempt from these requirements:
- Routine obstetrical ultrasounds used to monitor the development of a fetus.
- Diagnostic imaging services performed on a patient who is being treated on an inpatient basis or in an emergency room.
- Diagnostic radiographs.
Notification is required within 20 days after the date the results were sent to the ordering practitioner and may be accomplished in a manner deemed acceptable by the patient or the patient’s designee (U.S. mail, e-mail, an automatic alert from an electronic medical record system, facsimile, or provided directly to the patient). Notification is not required if the results were provided to the patient or the patient’s designee by the practitioner at the time of the test.
HB 1884 was signed into law by Gov. Wolf on Oct. 24, 2018 as Act 112 of 2018.
This act will take effect on Dec. 23, 2018.
Workers’ Compensation Guidelines
HB 1840, introduced by Rep. Rob W. Kauffman, addresses the Pennsylvania Supreme Court’s decision in Protz v. Workers Compensation Appeals Board, which was decided in June 2017. In that case, the Supreme Court invalidated a provision of Pennsylvania’s 1996 workers’ compensation reform law that allowed employers to request an Impairment Rating Evaluation (IRE) after an injured worker has been out of the workplace for 104 weeks.
The case invalidated the guidelines that may be used for IREs, which were mandated to be the most recent version of the American Medical Association’s (AMA) guidelines. The Court ruled that this was an impermissible delegation of authority to the AMA since the guidelines could be changed without input or approval from the Commonwealth. HB 1840 addressed this issue by mandating that the AMA’s 6th edition guidelines are to be used for IREs.
PAMED supported legislation to address the Supreme Court’s decision.
This act was signed into law by Gov. Wolf on Oct. 24, 2018 as Act 111 of 2018. It took effect on Oct. 24, 2018.
In the near future, PAMED will provide a review of all health-related bills that were enacted into law during the 2017-2018 legislative session, including any updates to these three bills.