Please, Stay In Touch

minions-363019_640A popular healthcare game since the election in November has been to speculate as to the fate of the Affordable Care Act, whether value based care will be pulled back and any other number of changes. Those guessing games are just that, guessing games. No one can know what will happen until all of the new players are confirmed and we see how Congress and the President can or will work together. No matter what happens, I hope that the leaders in both the Department of Health and Human Services, the Centers for Medicare and Medicaid Services and the Office of the National Coordinator for Health IT continue to meaningfully engage with participants in the industry and take comments to heart.

The openness and forthcoming communication from the major federal healthcare agencies over the past few years has been refreshing. Instead of sittingĀ locked away in Washington, leaders from HHS, CMS and ONC have gone on proactive campaigns to meet with physicians, providers, leaders and others who are or will be impacted by the regulations being implemented. Andy Slavitt and his team’s work at CMS regarding MACRA receives most of the attention in this regard. It may be hard to remember now, but the proposed rule implementing MACRA received almost universal criticism. Instead of pushing ahead with an unpopular and controversial proposal, CMS took a prolonged roadshow to meet with people on the frontlines and solicit comments. As a result, CMS was able to gather reams of data and opinions. After taking all of that information, the final rule showed a thoughtful consideration of and response to those comments. While the final rule was still not viewed as perfect, the fact that CMS demonstrated that it would listen and wanted to receive feedback helped to move the needle of public opinion. A recent post from Mandi Bishop paints the picture of why Andy Slavitt has gained such respect.

ONC has long displayed a similar attitude. The engagement encompasses the National Coordinator and others in the senior team. When Karen DeSalvo was the National Coordinator, she continually spoke at conferences and felt approachable. Her goal seemed to be to remove the mystique or fear surrounding health IT and get to use it and understand how it can help improve healthcare. Health IT remains far from perfect, but spreading that message is important. ONC has also done a good job of engaging through blog posts and publication of guidance information. If laws or regulations are incomprehensible, it does not help anyone. From this perspective, the push to get guidance out has been invaluable.

The Office for Civil Rights within HHS has also played a part in producing helpful guidance and educating the industry. OCR is the government’s HIPAA enforcer. Instead of just increasing fine and settlements, OCR is also trying to educate and inform everyone as to how HIPAA works and what it actually does. It seems that OCR is fed up with HIPAA being used as a blind excuse for preventing data use and disclosure. While the guidance is not establishing any new interpretations, at least for those who actually take the time to look at HIPAA, the guidance is targeting new uses and common complaints. The targeting again demonstrates regulators who are listening to the public and engaging on common ground.

Lastly, the participation of so many HHS, CMS and ONC leaders on Twitter is eye opening. While there are dangers in how Twitter can be used, there are some good examples of how it can enhance engagement and be used as a positive tool. Andy Slavitt, Lucia Savage (the ONC Chief Privacy Officer), and Deven McGraw (the OCR Deputy Director for Health Information Privacy) are my primary examples. Each is regularly on Twitter, respond to comments or general messages and help spread useful information.

My hope is that whoever replaces the individuals identified in this post and others in top leadership positions at HHS, CMS, ONC and other healthcare related agencies continue to use the same philosophy of engagement. In a time when so much uncertainty remains with the healthcare industry, it is important for leaders to be open, listening and communicating with those they are impacting. While optimistic, this will hopefully lead the healthcare industry to a better place and one that achieves the ultimate goal of better quality healthcare.

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About Matt Fisher

Matt is the chair of Mirick O'Connell's Health Law Group and a partner in the firm's Business Group. Matt focuses his practice on health law and all areas of corporate transactions. Matt's health law practice includes advising clients with regulatory, fraud, abuse, and compliance issues. With regard to regulatory matters, Matt advises clients to ensure that contracts, agreements and other business arrangements meet both federal and state statutory and regulatory requirements. Matt's regulatory advice focuses on complying with requirements of the Stark Law, Anti-Kickback Statute, fraud and abuse regulations, licensing requirements and HIPAA. Matt also advises clients on compliance policies to develop appropriate monitoring and oversight of operations.
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