The One Way the Trump Administration Can Drive Competition Without Regulation

There is one way the Trump HHS and VA can thread the needle between provider economic self-interest and burdensome regulation and it’s based on Federal health IT policy.

This past week has seen a number of high-profile announcements from the Trump HHS including Secretary Azar and CMS Administrator Verma  about patient empowerment and enhanced transparency as a strategy to breathe life into healthcare reform. Meanwhile, VA Secretary Shulkin is under immense pressure to make their privatized Cerner EHR interoperable.

It’s pretty clear that the Trump HHS wants to do something about the frustrating and ineffective health IT policies that led to the 21st Century Cures Act information blocking provisions and that they’re hoping to leverage the $1 Trillion of federal spending in healthcare as an alternative to heavy-handed regulation.  This is all good but what can they actually do?

Most of Secretary Azar’s talk is about disruption:

“In fact, it will require some degree of federal intervention — perhaps even an uncomfortable degree. That may sound surprising coming from an administration that deeply believes in the power of markets and competition. But the status quo is far from a competitive free market in the economic sense of the term, and healthcare is such a complex system, that facilitating a competitive, value-based marketplace is going to be disruptive to existing actors.”

And most of Administrator Verma’s talk is about patient control as essential to disruption:

“To this end, the administration is launching the MyHealthEData Initiative. MyHealthEData is a government-wide initiative that will break down the barriers that contribute to preventing patients from being able to access and control their medical records.”

Patient control can, and should, be mandated through regulation such as TEFCA  but it might work even better if CMS and VA used their purchasing power in the market for health services and health IT. Medicare and Medicaid can set an example for how patients can direct access to their specific benefits to patient-centered service providers that will provide decision support and other services. The VA can set an example in how their new Cerner EHR implements patient-directed exchange as the foundation of interoperability with Department of Defense as well as private-sector providers of services to our veterans. The Federal health system does not need regulation, just discipline.

But there’s also one piece of regulatory temptation that HHS and our federal health system must avoid and it’s evident in this confusing quote from Administrator Verma’s speech:

“In addition, to help beneficiaries make good decisions about whom they share their data with; CMS will require that App Developers go through an approval process based on industry best practices before they are granted access to beneficiary data.”

An “app approval process” is regulation by a different name and must be shunned by the Trump HHS. Who would decide to approve an app or not? Why should electronic access to patient data be subject to censorship when paper-based access through the typical “Release of Information” form allowed patients to send data directly from the hospital to *anywhere*?

HHS and the VA must not be allowed to censor a patient’s decision to share our own medical data. The bureaucracy required to approve the patient’s choice does not exist today and does not need to be created tomorrow. This one issue was central to the 2016 API Task Force Recommendations and the discussions around this isssue dominated the debate prior to acceptance by the predecessor of today’s HHS technology advisory group (HITAC).

Patient control over the FHIR interfaces being implemented by Medicare Blue Button 2.0 and VA’s Cerner EHR must truly be under patient control if we’re to avoid burdensome regulation. It might be as simple as that.

Adrian Gropper is CTO of Patient Privacy Rights.

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