State’s Interpretation of E-Prescribing Law Could Threaten Physician-Patient Relationships

Last Updated: Sep 11, 2019

A new state law on e-prescribing of controlled substances, which will take effect on Oct. 24, 2019, includes several exceptions for practitioners.

The Pennsylvania Department of Health’s (DOH) interpretation of one of those exceptions has many in the physician community, including the Pennsylvania Medical Society (PAMED), sounding the alarm.

Pills-prescription-e-prescribingThe exception as written in the law (known as Act 96 of 2018) states:

The electronic prescription requirement under this subsection shall not apply if the prescription is issued by a practitioner who or health care facility that does not have either of the following:

1. Internet access; or
2.
An electronic health record system.

DOH says the exception applies only if the practitioner or facility is without both internet access and an EHR system. This means any practitioner or facility who lacks either an EHR system or internet access but not both, would be required to apply for a temporary hardship exemption subject to DOH’s approval.

PAMED Urges DOH to Reconsider Its Interpretation of the EHR Exception

On Sept. 3, 2019, the Pennsylvania Medical Society (PAMED) reached out to Secretary of Health Rachel Levine, MD via this letter, urging DOH to reconsider its interpretation of the law. We are concerned that this interpretation could threaten the physician-patient relationship.

PAMED was an integral part of discussions relating to Act 96 before it was passed and signed into law. The intent of this statutory exception was not to require both conditions but rather one or the other. We believe that practitioners who lack an EHR system or who do not have internet access are eligible for an automatic exception under the law.

Some Practices May Be Forced to Stop Prescribing Controlled Substances or to Close Altogether

“The Department's interpretation will require many practitioners, particularly those in rural areas where internet access is not readily available or reliable, or practitioners whose smaller practices could not sustain costs associated with implementing an EHR system, to face a no-win situation,” PAMED wrote. “Practitioners will either have to risk violating the Department's interpretation of Act 96, stop prescribing controlled substances, or close their practice.”

In our letter, we outlined several additional concerns:

  • Many EHR systems do not automatically contain e-prescribing capabilities and instead offer it only as an add-on for an extra cost.
  • Applying for a hardship exemption does not adequately ensure that practitioners will not have to purchase EHR systems. The hardship exception is only valid for one year and is granted at the discretion of DOH.
  • DOH’s stated timeframe of a minimum of ten business days to rule on a hardship exemption request could mean that practitioners who have applied for an exemption would not receive an answer in advance of the law’s Oct. 24 effective date.

PAMED supports DOH in its efforts to stem the state’s opioid crisis. However, we believe that its interpretation of this exception could jeopardize this goal.

We will continue to engage the Governor’s Administration in discussions on Act 96 and will share more information with members as it becomes available.

What Steps Should Practices Take?

Practitioners or facilities that may lack either an EHR system or internet access but not both, or who do not qualify for any other exception contained in the law, should apply for a hardship exemption if they will be unable to comply with the law by the Oct. 24 effective date.

PAMED offers information on Act 96, including how to apply for a hardship exception, at www.pamedsoc.org/Act96.

PAMED members with questions can also contact our Knowledge Center at 855-PAMED4U (855-726-3348) or KnowledgeCenter@pamedsoc.org

4 comments

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  1. Roger David | Oct 04, 2019
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  2. Donald Fetterolf | Sep 16, 2019

    As a semi-retired physician, it would be helpful if the PA Medical Society could assist us in identifying a low cost or free way to be able to write for these scripts and submit electronically.  I very rarely prescribe narcotics but would like the ability to do so for an emergency or in the event of a societal level emergency or natural disaster.  I have internet access but not an EHR or an EHR that can submit electronic prescriptions.

    A service the PA Med Society might have could be to either sponsor a bare bones software or provide direction to how we might be able to comply with still one more law that would otherwise cost money, and add burdens to physicians.  The alternative is to tell those who may need this service that the government has here too eliminated that freedom for physicians.

  3. Jennifer Kuruc | Sep 13, 2019

    Re: the above statement:

    "In our letter, we outlined several additional concerns: Many EHR systems do not automatically contain e-prescribing capabilities and instead offer it only as an add-on for an extra cost."

    Not only do EHR's charge an add-on fee to be able to e-prescribe, but there is an entirely separate module and increased monthly fee to be able to e-prescribe controlled substances.  We have to purchase a second (new) module through a 3rd party vendor that partners with our EHR and our monthly subscription fee has doubled.

    (Not eligible for an exception, just curious how pharmacies will know which docs to accept paper scripts from (those docs who were granted "exceptions")?)

  4. William Rowe | Sep 13, 2019

    This is not the first time the DoH has "interpreted" a regulation that is in direct opposition to the plain text of the law or regulation.  It is very frustrating dealing with a bureaucracy that seems like they have difficulty reading plain English.  If this needs to go to court, the Auer rule (a guideline that the courts will typically side with the regulatory body in interpretation if the written regulation is vague) would not even apply here, as the plain text of the regulation is EITHER OR.  I hope the DoH realizes their mistake without forcing interested parties to waste their money and taxpayer money on legal action.

    W.R., M.D.

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