One of the things my family did a number of times as a child was to choose a family that we’d surprise with small gifts every day for 12 days before Christmas. My mom was always really creative and would turn the 11 Pipers Piping into a pipping hot pie or something delicious like that. Of course, my favorite part was dropping it off at the door with the adrenaline pumping as I hopped to get in and out without getting caught. Then, we’d swing by shortly after to see if they picked it up. It definitely made me fall in love with the 12 days of Christmas and finding ways to give to others.
A couple years back, we took inspiration from the 12 days of Christmas and held what we called the 12 days of #HITChristmas. It was an opportunity to highlight someone from the health IT community in the 12 days leading up to Christmas. In 2020, we thought it would be fun to do it again. So, for the next 12 days, we’ll be featuring a different health IT community member each day for our #HITChristmas. We hope you enjoy a look across the spectrum of people in the wonderful Healthcare IT Community. We have some amazing people to highlight.
On the 1st Day of #HITChristmas we’re excited to feature, Matt Fisher, Chair of Health Law Group, Mirick O’Connell.
Tell us about yourself and your work in health IT.
I am a corporate and regulatory healthcare lawyer, which means I help guide clients through the maze of regulations that impact operations in the healthcare industry while developing a path to achieve the client’s goals. For health IT clients in particular, HIPAA is the regulation that comes up the most often as HIPAA does impact how healthcare related data (in most instances) can be used, disclosed, retained, or otherwise interacted with. By providing guidance and insight, I try to make operations and decisions more efficient. Ultimately the aim is to free up my clients to focus on what they want to focus on, specifically the innovative idea that got them started in the first place.
Can you share an example where your work as a lawyer helped to enable health IT innovation or a health IT company to be successful?
An example of how I work with clients is to examine proposed ideas or processes from a different lens and try to think about different outcomes. With one client, I actually had an initial discussion with the client and started asking questions about how the client wanted to get customers, the types of services that would be offered, and how agreements would be put into place. Based on the description, I helped the client (which at the time of the discussion was only a potential client) understand that the initially contemplated plan for entry would not align with regulatory requirements. The client took that feedback and re-examined its plans. After that re-examination the client came back to discuss again and a better pathway was put into place. At that point, we formally started working together.
If you could change any law that you think is holding back innovation in healthcare, what would it be and why?
The list of laws or regulations making operation in healthcare difficult is arguably too long to list. However, current innovation in healthcare is not always held back by the current laws so much as insufficient understanding or appreciation of how the laws actually work. HIPAA is a prime example of how misunderstanding inhibits innovation. HIPAA is actually quite permissive when it comes to the use and disclosure of healthcare related information, but many just assume that it restricts all desirable uses. Correcting those misunderstandings and helping to spread more education and awareness is the best way to encourage and support innovation.
What’s your take on the new Stark exceptions? Will the exceptions allow those doing value based care to use incentives that would have been tricky before?
The new Stark Law exceptions (and the corresponding Anti-Kickback Statute safe harbors) should help implementation and growth of value based care arrangements. It is telling that pretty much all of the demonstration programs that the Centers for Medicare and Medicaid Services implemented contained waivers from Stark Law and Anti-Kickback Statute compliance. The presence of the waivers implicitly acknowledged that meeting then current regulatory requirements could inhibit the shared savings and close coordination goals of value based care. From that perspective, the new regulatory changes make it possible for all organizations to benefit from a regulatory scheme that aligns with value based care and is not rooted solely in fee for service. While optimism is valid, it will be necessary to fully parse through the new exceptions and safe harbors as well as track future guidance or enforcement actions to see the full impact. On the whole though, it should become somewhat less tricky to enter into value based care arrangements.
If I’m a health IT startup company, when should I really take the time to work with a lawyer who understands healthcare?
It is important for healthcare startups to work with healthcare lawyers because a general lawyer will not fully understand or appreciate all of the laws and regulations that govern the healthcare industry. The complexity and scope of the healthcare regulations means that it is hard to just dabble in health law. Instead, it is necessary to work with the laws and regulations on a regular basis. The clients that need the most help are often those clients that tried to either go it alone or used a lawyer who did not know about the potential impacts of different healthcare laws or regulations. While working with a lawyer can be an expense that seems hard to justify upfront, spending a bit of money on the advice can save a lot of pain and reworking down the road.
What kind of lawsuits do you think we’ll see coming out of COVID?
Lawsuits connected to alleged fraud or other billing issues are the types of lawsuits most likely to come out of COVID. Even though many of the regulatory relaxations or waivers introduced federally or by the states take a position of not seeking to hold organizations accountable, it is predictable that reviews will still occur and second guessing will occur. That is kind of a hallmark of the pay and chase model that healthcare has operated in for a long time. It means the government pays money out, then examines whether it should have paid the money, and when a problem is found the government tries to get its money back. It is not an efficient system, but it does mean that the government (or a whistleblower) can try to pick apart decisions and find instance of intentional misconduct or where requirements were not followed appropriately. Regardless of the reason, the reviews can involve lengthy lawsuits that take up time and attention.
What can the health IT community do to help you?
The health IT community can help by reaching out to connect. I want to help the health IT community advance its goals, which means giving me the chance to provide support and guidance. I like to develop long-term relationships with folks because questions or issues are very rarely a one and done proposition in healthcare. Establishing an ongoing dialogue and interaction is a good way to help everyone achieve their goals. You can easily find me on Twitter @Matt_R_Fisher.
Be sure to follow all of the 12 Day of #HITChristmas.
