Are your controlled substance prescription pads up-to-date?

On January 1, 2012, a new law took effect that requires changes to controlled substance prescription forms. Unless a physician is a designated prescriber from a licensed health care facility, prescription forms for controlled substances are now required to include the preprinted address of the prescribing practitioner. Previously, prescription forms were only required to include the preprinted name, category of licensure, license number and federal controlled substance registration number of the prescribing practitioner.

Physicians must also now ensure their controlled substance prescription pads contain a statement printed on the bottom of the prescription form that the "Prescription is void if the number of drugs prescribed is not noted."

Any controlled substance prescription form that is not in compliance with these requirements won't be valid or accepted after July 1, 2012. For more details, see California Health & Safety Code §11162.1.

 Physicians are urged to check that their prescription pads are up-to-date and were obtained from an approved security printer – you can check approved printers at the Office of the Attorney General's website.

Meal Periods - What does the Brinker Case Mean for California Employers?

After 3 years since it first granted hearing the case, the California Supreme Court finally issued a decision in the now famous Brinker Restaurant Corp. v. Superior Court. The fundamental question at hand was whether or not an employer is required to make sure that employees take their required meal periods. The court ruled that an employer has met its obligation to "provide" a meal period by "relieving the employee of all duty," but is not required to "ensure" that meal periods are actually taken. In addition to this good news that employees can now opt out of a meal period, the Brinker decision also clarified the timing of these breaks, but also threw us a few curve balls...

Background

Existing California law states that, “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” Additionally, “An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.” If a meal period is missed or is cut short, the employer is responsible for paying the employee a penalty of one hour extra pay.

The Old Questions

There have been a number of questions that employers and the courts have struggled with:

• Does the employer have to police its meal period policy?
• If an employee decides to skip a meal period, does the employer still need to pay the 1 hour     penalty?

• When does the first meal period actually have to happen?
• Does the eligibility for a second meal period and its timing depend upon when the first meal period was taken?

Brinker's Answers on Meal Periods

The Brinker decision clears up a number of those old questions and provides increased flexibility for employers and employees. Here's what they said:

• Meal periods are considered "provided" as long as they are "made available" to employees. If the employee is afforded the opportunity to be relieved of all duty, the employer has met its obligation. The employer, however, cannot pressure an employee to skip a break.

• Employers do not need to ensure that meal periods are actually taken.

• Employees may elect to skip a meal period or take a short break without the payment of any penalty. Regular wages are due for any time actually worked including any overtime that might incur as a result of the missed or short meal period.

• If the employer prevents the employee from taking the meal period or causes the break to be less than 1/2 hour, the penalty is still due.

• The required first 1/2 hour meal period must begin no later than the end of the employee's 5th hour of work. The second meal period must begin before the end of the 10th hour of work.

• "Early" lunching is permitted and does not cause the employee to be eligible sooner for a second meal period. In other words, the employer does not have to provide a meal period every 5 hours (no rolling meal periods).

• On-Duty meal period waivers and waivers for shifts that do not exceed 6 hours remain unchanged.

Brinker's Surprises on Rest Breaks

Existing California law requires employers to provide 10-minute paid rest breaks to employees for each four hours of work “or major fraction thereof.” In what took many of us by surprise, Brinker ruled that "major fraction thereof" means 2.5 hours.

• Existing law requires no rest breaks for shifts of less than 3.5 hours, this remains unchanged.

• One 10-minute rest break is due for shifts lasting from 3.5 to 6 hours.

• Two 10-minute rest breaks are due for shifts that are longer than 6 hours and up to 10 hours.

• Three 10-minute rest breaks are due for shifts that are longer than 10 hours and up to 14 hours.

• The 1st rest break of the day does not necessarily have to come before the 1st meal period.

• The employer must make a good faith effort to provide rest breaks as close to the middle of a shift as possible, but can deviate where practical considerations render it infeasible. However, the Court cautioned that during a normal 8 hour day, the employer would be hard-pressed to justify having both rest breaks either before or after the meal period.

• As before, the employer must provide rest breaks, but is not required to ensure they're taken. However, if the employer causes the break to be missed, the one-hour penalty must be paid.

The New Questions

While providing a lot of very clear guidance and clarification, the Brinker ruling unfortunately raises its own set of new issues:

• How does an employer prove that it made the lunch break available? Brinker has told us that what will suffice will vary from industry to industry. What might be some best practices?

• If "early lunching" and skipping meal periods are now permitted, can an employee now elect to take late lunches that begin after the end of the 5th hour of work?

• As the burden of proof is on the employer to show that missed or short lunch breaks were taken at the discretion of the employee, how does the employer prove this?

• Now that California law will allow the employee to take a short meal period, can this break be unpaid? Federal law generally only allows a meal period to be unpaid (with narrow exceptions) if it is no shorter than 1/2 hour.

What should employers do?

As the Brinker ruling takes effect immediately, employers should:

• Decide if you want to allow employees to skip or take short meal periods;

• Update your employee handbook polices on meal periods and rest breaks;

• Decide how you will prove that you are making meal periods available;

• Review your timekeeping systems;

• Decide how you will document that the employee has requested to skip or take a short meal period;

• Determine what your pay practices will be with regards to short meal periods;

• Educate your managers, your payroll department, and your employees on the new rules.

Must Act NOW to Avoid the Medicare E-prescribing Penalty That Starts on January 1, 2013

The Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) established a five-year Medicare incentive program beginning in 2009, to promote the adoption and use of e-prescribing by eligible professionals, including physicians. The law also included a penalty phase beginning in 2012 that runs through 2014 for physicians who are eligible for the Medicare e-prescribing incentive payments but fail to e-prescribe.

In November 2011, the Centers for Medicare & Medicaid Services (CMS) released the final regulation on the 2013 Medicare e-prescribing penalty program. The penalty for not successfully participating in the program or not filing for an exemption on time is a 1.5 percent payment reduction for all Medicare claims based on the 2013 fee schedule amounts during the year.

Avoiding the 2013 Medicare e-prescribing penalty

Physicians and other eligible professionals who meet the following criteria will not be subject to the 2013 Medicare e-prescribing penalty. If you meet one of the following criteria, you will automatically be excluded from the penalty and no action is required on your part:

• You are not an MD, DO, Podiatrist, Nurse Practitioner, or Physician Assistant as of June 30, 2012.

• Office visits and other services listed in the CMS e-prescribing measure specifications represent less than 10 percent of your allowed Medicare Part B charges in the first six months of 2012 (January 1, 2012 through June 30, 2012) (Link to CMS’ measure specifications at: https://www.cms.gov/ERxIncentive/06_E-Prescribing_Measure.asp#TopOfPage and click on 2012 eRx Measure Specifications, Release Notes, and Claims-Based Reporting Principles [ZIP 475KB]).

• Less than 100 of your claims for Medicare Part B patient services contain visit and service codes that fall within the e-prescribing measure specifications for dates of service between January 1, 2012 and June 30, 2012.

In addition, if a physician (MD, DO) or eligible professional (podiatrist, nurse practitioner, physician assistant) has already taken one of the actions described below, the 2013 e-prescribing penalty will not apply:

• You e-prescribed using a qualifying e-prescribing system or certified electronic health record (EHR) and submitted 10 or more e-prescribing codes (G8553) on your Medicare Part B claim forms from January 1, 2012 and June 30, 2012, and the claims were received and processed by CMS by no later than July 31, 2012.

o Note: Unlike the e-prescribing incentive program and the 2012 e-prescribing penalty program, to avoid an e-prescribing penalty in 2013, you do not have to tie the electronic prescription to a qualifying visit or service when you report on 10 e-scripts during the first six months of 2012. As long as you e-prescribed for a Medicare patient you treated, you can report the G8553 code on the Medicare Part B claim on any Medicare service or visit you rendered for your patient.

• You do not have prescribing privileges and you reported the G-code, G8644, at least one time on a Medicare Part B claim prior to June 30, 2012.Page 2

More ways physicians can avoid the 2013 Medicare e-prescribing penalty by applying for a hardship exemption The final rule provides a number of ways physicians can avoid the e-prescribing penalty that is scheduled to begin on January 1, 2013. Below are the significant hardship exemption categories you can apply for to avoid the penalty:

• Your practice is located in a rural area without high speed internet access. • Your practice is located in an area without sufficient available pharmacies for e-prescribing. • You are unable to electronically prescribe due to local, State or Federal law or regulation, (e.g.,

physicians who mainly prescribe narcotics but because of state law cannot submit these

prescriptions electronically can apply for this exemption category). • You prescribe fewer than 100 prescriptions between January 1, 2012 and June 30, 2012.

Physicians should take steps NOW to avoid the 2013 Medicare e-prescribing penalty Step 1: Determine if you meet the above criteria that would exclude you from being subject to the e- prescribing penalty. Step 2: If you do not meet the exclusion criteria, determine if you fall under one or more of the above mentioned significant hardship exemption categories that would exempt you from the 2013 Medicare e- prescribing penalty. Step 3: If you meet one or more of the exemption categories, file for an exemption that applies to your particular hardship situation no later than June 30, 2012, by using CMS’ on-line Web-based tool. This link takes you directly to CMS’ on-line hardship exemption request page: https://www.qualitynet.org/portal/server.pt/community/communications_support_system/234 A user manual is also available on-line at: https://www.qualitynet.org/imageserver/pqri/documents/2012_PQRS_eRx%20Communication%20Suppor t%20Page%20User%20Manual.pdf Step 4: When you apply on-line for an exemption, be sure to include the following information in your request:

• Identifying information such as the TIN, individual NPI, name, mailing address, and e-mail address of all affected eligible professionals.

o Please make sure to supply your Individual (not Group) NPI number in the NPI field. o When requesting a hardship exemption, you must enter the last 6 digits of the Tax

Identification Number (TIN) used to bill Medicare. If no TIN is available, the last 6 digits

of the Social Security Number used to bill Medicare should be entered. o Note: It is very important that you verify that you have entered the correct TIN and NPI

information when requesting an exemption. Entering inaccurate information may result in

denial of your hardship exemption request. • The significant hardship exemption category that applies. • A justification statement describing how compliance with the requirement for being a successful

e-prescriber for the 2013 Medicare e-prescribing penalty program during the reporting period

resulted in a significant hardship to you. • An attestation of the accuracy of the information provided.

Important things to note if you are applying for an exemption

Although physicians are required to apply for one exemption category to avoid the penalty, CMS will allow physicians to apply for one exemption and explain in their justification statement all of the exemption categories that apply to their particular hardship. There is no appeals process, so please make sure you apply for an exemption that is applicable to your situation. If you are not sure whether or not you successfully participated in the e-prescribing program, or you are not sure if you are subject to penalties, you should go ahead and apply on-line for an exemption that pertains to your particular hardship.

Individual physicians must apply on-line via CMS’ Web-based tool for an exemption by no later than June 30, 2012, in order to avoid the January 1, 2013, Medicare e-prescribing penalty. Applications cannot be submitted via mail, e-mail, or fax. Individual physicians must file directly and can not delegate the on-line filing to their staff.

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Any questions regarding the use of CMS’ Web-based tool should be directed to the Quality Net Help Desk. The Quality Net Help Desk's may be contacted via telephone at 1-866-288-8912 or via email at Qnetsupport@sdps.org. Further information on the QualityNet Help Desk is available at: https://www.cms.gov/ERxIncentive/11_HelpDeskSupport.asp#T opOfPage.

CMS information on the recoupment process

CMS currently plans to recoup the 1.5 percent penalty via a 1.5 percent reduction in 2013 payment schedule amounts for physicians subject to the penalty. Physicians who are subject to a penalty are also required to adjust co-insurance or co-pay amounts. For details, go to: https://questions.cms.hhs.gov/app/answers/detail/a_id/10560/kw/eRx/session/L3NpZC83OGxiWGVOaw %3D%3D

Medicare e-prescribing incentives available in 2012

If you report the G-code (G8553) 25 times or more on your Medicare Part B claim forms for eligible services and visits in 2012, you are eligible for an incentive payment equal to 1 percent of your total Medicare Part B payments for the year (Remember: Report G8553 10 times before June 30, 2012 to avoid a penalty in 2013). For more information on e-prescribing incentives, go to: http://www.ama- assn.org/resources/doc/hit/faq-cms-incentive-program.pdf. In addition, physicians who successfully participate in the 2012 e-prescribing incentive program will also avoid an e-prescribing penalty in 2014.

Note: There have been some cases where vendors/billers/clearinghouses have inappropriately removed the G-code—G8553—from a physician’s Medicare Part B claims thinking that the G-code was reported in error. Please make sure that as you begin reporting for 2012 that your vendors/billers/clearinghouses understand why you are including the G8553 code on your claims and make sure that they do not remove the G8553 code from your Medicare Part B claims. Successful participation in the e-prescribing incentive and penalty programs is contingent upon e-prescribing and the reporting of a certain number of G8553 codes.

• Remember to review your remittance advice regularly to ensure you receive the N365 code when submitting the G8553 codes on your Medicare Part B claims. The N365 code is your indication that the G8553 code passed into the Medicare National Claims History (NCH) database.

• Physicians who have been unsuccessful in resolving their Medicare e-prescribing concerns can complete a complaint form found on the AMA’s webpage at: http://www.ama-assn.org/ama/pub/physician- resources/health-information-technology/incentive-programs/cms-eprescribing-incentive-program.page.

Additional resources

• AMA website on Medicare enrollment: www.ama-assn.org/go/Medicareenrollment • AMA website on health IT incentive programs: www.ama-assn.org/go/hit (select “Incentive

Programs”) • CMS website on the E-Prescribing program: https://www.cms.gov/erxincentive/ and

https://www.cms.gov /ERxIncentive/downloads/2012eRx_FuturePaymentAdjustments_01-30- 2012_508_2.pdf