New York e-Prescribing Law Goes Into Effect This Sunday

Ken Terry

March 24, 2016

A New York State law that requires all physicians to prescribe electronically will go into effect on Sunday, March 27. While this is not the first such law in the country — Minnesota has had a mandatory e-prescribing statute since 2011 — it is the first with enforcement provisions, including fines and other penalties for prescribers who fail to comply with the law.

The New York e-prescribing mandate is part of the I-STOP statute, which is aimed at controlling narcotics abuse. Passed in 2012, the law requires physicians or their staff to check a statewide electronic database before controlled substances are prescribed. The e-prescribing requirement, which covers both controlled substances and other prescription drugs, was originally scheduled to go into effect in March 2015. The state legislature postponed the deadline for a year to give physicians and electronic health record (EHR) vendors more time to prepare for the changeover.

Since then, most EHR companies have deployed technology to accommodate electronic prescribing of controlled substances (EPCS), said Paul Uhrig, chief administrative and legal officer for Surescripts, the company that electronically connects physician offices to pharmacies nationwide, in an interview with Medscape Medical News. And 95% of New York pharmacies — nearly all that take electronic prescriptions — can now accept EPCS-enabled prescriptions, compared with 84% nationally, according to Surescripts' latest data.

Seventy percent of prescribers in New York are now transmitting prescriptions electronically compared with 58% nationally. And 47% of New York prescribers can do EPCS compared with just 8% of prescribers nationwide. One year ago, only 12% of New York prescribers were EPCS-enabled. Moreover, Uhrig noted, most of those who are enabled today are electronically prescribing controlled substances. Surescripts recorded 750,000 such prescriptions in February, he said.

Not Everyone Is Ready

Nevertheless, with so many New York physicians still not EPCS-enabled or even prescribing electronically, the Medical Society of the State of New York (MSSNY) expects a bumpy rollout of the e-prescribing mandate, MSSNY President Joseph R. Maldonado, Jr, MD, told Medscape Medical News. While there are many reasons for doctors not being prepared, including ignorance of the statute, he confirmed that most EHR vendors are now supplying EPCS-enabled e-prescribing modules. Doctors who do not have EHRs can buy stand-alone e-prescribing programs. MSSNY is offering one of those applications to its members at a discount.

Dr Maldonado, a urologist in Rome, NewYork, is optimistic that most New York physicians will start complying with the law within the next few months. Those practitioners who cannot meet the deadline may be able to apply to the New York State Department of Health for a waiver. The department has said it will provide waivers for up to a year to prescribers in cases where electronic prescribing is not available because of economic hardship, technological limitations not within the prescriber's control, or other exceptional circumstances.

Erin Silk, from the New York State Department of Health, told Medscape Medical News by email that "as of last Friday, over 3000 waivers have been approved (for over 13,000 distinct practitioners)."

In addition, the department recently described some additional circumstances in which it is permitted to write paper prescriptions. For example, Dr Maldonado said, physicians can do so if they have to write a long prescription with detailed instructions for taking a medication.

Silk also explained that, "the department understands that there will be times, however, when paper scripts are necessary such as during a technology failure or electrical outage, or when the provider determines that it would be impractical for the patient to obtain medication in a timely manner."

The health department's Office of Professional Misconduct will handle disciplinary actions against doctors who don't comply with the law, Dr Maldonado noted. "Because of the problems they anticipate in the rollout of the program, they probably won't enforce the regulations to the strictest letter [of the law] in the initial rollout," he said. But if any physicians do nothing to prepare for e-prescribing, he added, "the state may look at that as willful disregard" and prosecute the offenders.

Silk wrote that "possible penalties for public health law violations for providers without a waiver for e-prescribing include fines, and other penalties, including professional discipline."

Pharmacists must still accept paper prescriptions, Dr Maldonado said, because they don't know the situation of each prescriber. For example, pharmacists are not aware of whether a particular doctor's computer might have gone down or whether a physician received a temporary waiver from the state.

"The physician has a duty to contact the Department of Health with regard to any paper prescription, informing the department why that prescription was submitted as a paper script," he pointed out. "That highlights the challenges that physician communities will have, especially those near state borders."

For example, he said, if a physician in Westchester County, New York, sees a patient who lives in Connecticut and who uses a Connecticut pharmacy, the doctor must inform the state that he wrote a paper prescription for an out-of-state patient. "This is a very cumbersome step," Dr Maldonado noted.

DEA Approval

Another problem with the regulations, Dr Maldonado said, is that doctors must register their EHRs or stand-alone e-prescribers with the state's Bureau of Narcotic Enforcement at each site where they provide care. If a physician practices in multiple practices sites, hospitals, and/or nursing homes, that practitioner must register his or device — which must first be approved by the US Drug Enforcement Administration (DEA) — at each of those locations.

Before they can register, physicians must be identity-proofed as defined by DEA regulations and must use approved "two-factor" authentication methods to gain access to computers and mobile devices that contain e-prescribing software. These two-factor methods include the use of smart cards, one-time password tokens, and biometric devices to ensure that users are who they say they are.

EHR vendors are identity-proofing their customers for EPCS, in some cases through outside vendors. Physicians who haven't taken this step are likely to find it may be a while before they can complete it, Dr Maldonado said.

Maine and Massachusetts are considering laws similar to New York's, according to Uhrig.

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