Late last month, Jodi Daniel, then-director of the Office of Policy in the Office of the National Coordinator for Health Information Technology (ONC), announced that she would be stepping down from her post at the agency inside the Department of Health and Human Services (HHS). It was then revealed last week that Daniel would be joining Crowell & Moring LLP as a partner in the Washington, D.C.-based firm’s healthcare group.
Daniel served for a decade as the director at the ONC and 15 years at HHS, and according to her ONC bio, she developed the agency’s foundational legal strategies for health IT as the first Senior Counsel for Health Information Technology in the Office of the General Counsel (OGC) of HHS. Daniel was responsible for coordinating all legal advice regarding health IT for HHS and was the lead attorney for ONC, so the move to the law firm should be a natural progression for her.
Nonetheless, Daniel is the longest-tenured senior official at ONC, an agency that has experienced mass departures from its senior-level leadership over the last year. Shortly after announcing her decision to leave ONC and join Crowell & Moring, Daniel spoke with HCI Senior Editor Rajiv Leventhal about: her reason to leave the government; what her and other ONC senior–level leaders’ decisions to move to the private sector might mean for the agency; the government’s proper role in healthcare; how health IT has evolved during her time there; and what’s to be expected in the years ahead. Below are excerpts of that interview.
What was behind your reason to leave ONC at this time?
I have been at HHS for 15 years and at ONC for 10; I helped start the office back in 2005. I felt like it was a fabulous opportunity to have a lasting influence on healthcare systems. I have accomplished a lot, the office has accomplished a lot, but it was just great timing for me. ONC just came out with its [2015 Edition Health IT Certification Criteria] regulations that went along with meaningful use regulations, so for me it was time for a new challenge to see things from another vantage point. The government has done an amazing job of kick starting the movement towards health IT in the healthcare sector. The next decade will bring a lot of interesting activity and innovation happening in the technology sector and the private sector. You have new technology companies entering the market. I really wanted to be a part of leveraging that technology for healthcare and health outcomes, so the transition made sense for me.
What do you hope to accomplish at Crowell & Moring?
I hope to build a health IT policy legal practice where I can focus on issues from many different perspectives. Some of it will be helping providers adapt to changes to technology in the regulatory space, and comply and take advantage of opportunities for improving healthcare particularly as we see more changes with payment and payment reform. I also would like to work with organizations that are developing new technologies and figuring out how to improve how healthcare is delivered and how to improve communication between patients and providers, as well as help patients manage their care outside the doctor’s office and hospital. It’s about trying new things that may not have been contemplated by the current regulatory and policy regime so they understand how they can proceed and do so in a way that’s consistent with the policies from a technology perspective and payment perspective.
How does the federal health IT landscape look today compared to a few years ago? What has changed most?
I think the biggest change is one from spotty adoption of health IT to widespread adoption among providers and hospitals. Going back 10 years, there was a single digit percentage of doctors who had EHRs. Now half of doctors and almost all hospitals are using EHRs to take care of patients. So there is a huge shift in the use of adoption and tools.
There is also improvement in the electronic exchange and interoperability of health information using technology. The goal is that information will follow patients when and where they need. I don’t think we are there yet, but we do see pockets of interoperability in regions or among different healthcare systems, and in some cases nationally through things like The Sequoia Project. And then we have almost universal e-prescribing usage across healthcare providers and the exchange of prescription information between providers and pharmacies. That was a wish when I started, now it’s a reality. We wouldn’t have seen these changes if not for incentives and a push from the federal government.
With adoption, we have hit already hit the tipping point and passed it, so in that space, the real challenges and opportunities are focusing more on usability and the ability of systems to help improve efficiency and effectiveness to help providers care for patients. We are also seeing more adoption of technology outside providers who were eligible for incentives, such as in behavioral health communities. They are so critical to the overall health of patients.
What would you say is the proper role of government in health IT?
That’s a really good question. I think the government had a critical role to play over the last decade in pushing the industry to adopt technology. Healthcare was the last holdout for this. The government was successful in starting that movement and pushing it forward. Now it has gotten harder to figure out the most important pieces. I have always thought that the government’s role is focusing on consumer protection and where the market isn’t solving the problem. That’s what we had in the last decade where there was a need for moving healthcare systems into the 21st century and it wasn’t happening organically in the market, so that’s where the government stepped in.
They are also focusing on privacy and security; we have seen some improvements in interoperability and folks are coming together to work towards adjusting operational challenges for health information exchange. Government could play a role in bringing together stakeholders to bridge those gaps if it doesn’t happen organically in the market. There will be ongoing critical roles for government to play in, and a lot of it will be in the dynamic environment in technology development. I think the government will have a role to play in making sure that the existing policies keep up with the technology innovation and help promote that innovation that could lead to better care—or at a minimum don’t interfere with that innovation.
Considering your expertise with HIPAA and governing health IT, where do you think we stand regarding privacy and security in healthcare today?
Overall, one of the biggest challenges we have in healthcare is that the federal rules do not apply to all entities that have identifiable health information. HIPAA privacy and security rules only apply to covered entities. As we have different kinds of ways that people are getting healthcare services, as we see more direct-to-consumer tools and the like, it raises concerns about the protection of that information differently depending on who is holding that data. That’s a real gap that needs to be filled. On the security side, I think we will continue to see breaches as we have a lot of information in electronic format. It’s a matter of mitigating the risks, not eliminating risks. But we see this in every industry; it’s not unique to healthcare. The government does have an important role to play here in advancing security practices and standards. Individual organizations also need to be more diligent about identifying security risks and mitigating those risks in the best way so that we have limited harm in breaches or a reduction in the number of them.
There’s been significant change in senior-level leadership at ONC in the past year. What does this potentially signal?
There is a natural cycling of folks coming in and doing public service, and then leaving. When I was at ONC, there were five national coordinators in 10 years there, so it’s not a real recent trend. Because it’s a dynamic field, folks will come in and they help share the expertise they have, and then some point bring that back to the private sector. I think it’s a natural state of things in particular in government, particularly in an office that is working in such a dynamic market. I had been there from the beginning, and folks who were there when I started 10 years ago are still there. I don’t think it’s a sign of anything, but more of a reflection of the dynamic nature of the health IT space right now and the diverse opportunities that are available in the area.
Related to that, would you say there is any uncertainty regarding Karen DeSalvo and her current juggling of two high-level government positions?
She has been juggling those two roles for about a year now, so she is getting good at it. There is always uncertainty in government and political roles. With Karen, I will say one thing—I have only been gone for a few weeks, and she was 100 percent engaged in the key priority areas that ONC was working on. She works twice as hard to be able to do two jobs well. If anything, her HHS role [Acting Assistant Secretary for Health] has helped elevate the profile of the office.
How would you respond to the criticism that federal leaders aren’t appropriately positioned to make such impactful health IT policy decisions?
I would say the folks at ONC are among the brightest and most dedicated folks I see in all of government. I can’t say enough positive things about my former colleagues. It’s why I stayed as long as I did. Policymaking is really hard. There are hundreds and thousands of comments depending on what we put out, and everyone has a different position. Figuring out the right balance is hard between different competing positions as well as the position of the government to advance policy goals, advance benefits for consumers, and advance benefits for the federal programs. The role of policymaking is not to make everyone pleased, but try to listen to all the diverse positions, understand the implications of the choices we make, and weigh all of that in making the best push forward. It’s a very hard job. Sometimes we get it exactly right, sometimes folks are unhappy, sometimes we make mistakes and we fix it down the road. It’s based on very helpful conversations with stakeholders, review of their comments, analysis of different options, fact finding, and thinking through different approaches to challenging problems. I think the office has done a fairly good job of balancing different perspectives as well as advancing policy at the same time.
I have to get one question in on the meaningful use final rules. Providers seem confused about the aligning of Stage 3 and the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA)/ Merit-based Incentive Payment System (MIPS). What insight can you provide on this?
The MACRA/MIPS provisions came out not too long ago, and there are a lot of folks at HHS who are working hard to take the meaningful use program and consider it in light of the new MIPS requirements. CMS will work their magic and put something forward to help provide clarity to help bridge that gap from the prior regulatory regime to the new one that HHS has been asked to create by Congress.