CODE speaking with Daniel B. Frier, Esq., JD at the 4th Interdisciplinary Conference on Orthopedic Value Based Care 2020

Session Topics:

  • The TEAM Approach to Orthopedic ASCs
  • Multi-modal Approach to Orthopedic Patient Education

Interviewee: 
Daniel B. Frier, Esq., JD
Co-Founding Partner, Frier Levitt – Healthcare Law Firm

Breanna Cunningham:
This is Bre Cunningham with CODE Technology. I am here at OVBC 2020 on behalf of Dr. Kain. I have the great pleasure of interviewing Daniel Frier with Frier Levitt Law Firm. He was part of an amazing panel this morning on contracting and ASCs and I’m so excited to deep dive with you more and particularly on the subject of the legal nuances related to data. But first, can you just introduce yourself, tell me about your firm and how it relates to value based care?

Daniel B. Frier:
Sure. I’ve been practicing healthcare law for about 25 years. I started Frier Levitt with my partner, John Levitt, approximately 19 years ago, and we’ve grown into a 40 attorney firm, exclusively healthcare law. And we practice in most states, probably close to 50 states representing providers, representing pharmacies, representing hospitals and ambulatory surgery centers, the whole panoply of the provider of healthcare services.

Breanna Cunningham:
So, how does data play a role in your day-to-day work?

Daniel B. Frier:
Well, five years ago it played very little role, but what’s happening lately is data and the aggregation of data and the use of data, and the commercialization of data by providers in the healthcare system has become incredibly important in a number of ways. First of all, understanding one’s data as a provider is going to be critical in the years to come in determining how valuable a practice actually is. Not just for cost savings, but also outcomes, quality. And providers that have control over their data and understand it, and can aggregate it across many, many diverse providers will have a huge advantage in that process. Relying upon third-party payers, which is kind of what doctors have done in the past is not going to work in the long run. The fact is third-party payers don’t have access to the data that the providers themselves have.

Breanna Cunningham:
Okay. Can you speak a little bit more about that? Right now I feel like that’s how providers get all their data, so how is that going to shift? How is that going to change? What would you recommend a provider start doing, who’s not collecting data?

Daniel B. Frier:
Yeah. I think providers either on their own or in collaboration with other providers in clinically integrated networks or some other collaboration. If I were a provider I would want to develop a data warehouse that consists of all of the structured and unstructured data from the patient record. So we’re not just talking about claims data, we’re talking about data from EMR fields, which is the structured data. Unstructured data includes everything else that’s not in a field in an EMR system, like a surgical report or a lab report or something that’s scanned into the system as a PDF. The unstructured data could be just as important and it’s more difficult to extract information out of it. But there are companies that are third-parties that will help extract data and create a data warehouse and normalize that data so that if one provider describes a disease state in one way and another provider describes the same disease state in another way, there are companies that will help normalize that so that you can extract, you can essentially assign the same field for both of those providers so it’s usable data.

Daniel B. Frier:
And then we get involved, obviously, we’re not data aggregators, we’re a law firm.

Breanna Cunningham:
Well, you kind of sound like you are.

Daniel B. Frier:
Well, you have to know the industry.

Breanna Cunningham:
Sure, sure.

Daniel B. Frier:
But we get involved in the contractual relationships and the regulatory compliance when it comes to that stuff, and just counseling clients on how to get this done basically.

Breanna Cunningham:
Okay. And then when it comes to patient data and PHI, it’s nuanced, right? What can providers do with this data? What are your clients doing with it and what are they not allowed to do with it?

Daniel B. Frier:
Sure.

Breanna Cunningham:
Who owns it?

Daniel B. Frier:
Yeah, that is a great question. And all those questions are similar to one another. And the question of who owns the data is really… It’s a good question, but in some sense, it’s an impossible question to answer. And it may be the wrong question.

And the way I look at the way I describe data ownership is this, there’s a concept in the law called Riparian rights. What that means is that if you and I own two (2) adjacent pieces of property along a riverfront, that riverfront is running right through our property. We don’t own the river, but we can go to the river and we can take a bucket and we can take water out of that river, bring it to our house and use it to bathe or wash our dishes. We can’t dam up the river and divert all the water to us selfishly, but we can make reasonable use of the water in that river. And once we take the water from the river, we bring it to our house, it becomes our water. Data is similar to that. As data passes through all the different levels of providers, nobody really owns the data, but as a physician for example, as in a medical practice can take its data and can use it under HIPAA for treatment, payment and healthcare operations, which is a broad definition, and can also de-identify that data. And once the data is de-identified, the patient no longer has rights over it.

Breanna Cunningham:
Okay.

Daniel B. Frier:
That’s the important thing to understand. Once the data is de-identified… And a simple example of this is if a company said to medical practice, “We want to know what percentage of your patients have blue eyes?” And the practice said, “We have… 14% of our patients have blue eyes.” There are no laws being broken. That data was extracted from the chart, it doesn’t contain PHI, and the patient has no right to protest against that. Obviously, that’s a very simplistic example, but-

Breanna Cunningham:
But a great example that helped me wrap my brain around it.

Daniel B. Frier:
Yeah. So, without getting into a long discussion over all the different nuances of data ownership and control and licensing, there are ways that physicians can extract data either with patient consent or sometimes without patient consent, to use that data for their own operations, to help treat patients, to help them negotiate with managed care companies, and even sometimes to commercialize that data in order to fund their own operations.

Breanna Cunningham:
That’s so interesting. So, talk to me a little bit about HIPAA?

Daniel B. Frier:
Okay. Yeah. So HIPAA, I started getting into it in the last question. In so far as I described, the three circumstances where data can be used by a provider. When you’re in the data aggregation business as a medical practice, when you start getting into that business, the medical practice has to absolutely understand their obligations under HIPAA and understand… But what I find is that most providers overestimate what HIPAA requires, not underestimated.

Breanna Cunningham:
Okay. Oh, interesting. I would have thought it would’ve been the opposite.

Daniel B. Frier:
Yeah. I think a lot of providers wanting to do the right thing feel that every single situation requires patient consent. Every situation, every relationship needs a business associate agreement, and that’s not true. You only need a business associate agreement if there’s a contractual arrangement to exchange data, to exchange PHI between either a covered entity, like a medical practice and a business associate, or two business associates. But if you’re not exchanging PHI, if you’re exchanging de-identified data, for example, you don’t need a business associate agreement.

Breanna Cunningham:
Okay. I would say that probably 75% of surgeons and healthcare professionals, myself included, I didn’t even know that.

Daniel B. Frier:
Yeah.

Breanna Cunningham:
I thought even de-identified, even with PHI or no PHI, you’d still have to have a BAA in place to cover. So, that’s fascinating.

Daniel B. Frier:
Yeah, so the important take-away from that is a lot of providers shy away from data arrangements, data contracts, data aggregation, data commercialization because they worry that it’s against the law, or that they have to go to their patients, and they don’t want to confront their patients and ask their patients to sign another form.

Breanna Cunningham:
Right.

Daniel B. Frier:
And a lot of times we can get around that.

Breanna Cunningham:
Interesting.

Daniel B. Frier:
Yeah.

Breanna Cunningham:
So, what are some other… I mean, you are very passionate about this subject. What are some other things related to data that you think that providers and healthcare administrators need to know?

Daniel B. Frier:
Yeah. I mean, I don’t want to understate data. You can’t overstate the importance of it because I think it’s so important in ways that we haven’t even figured out yet. But one of the ways I think that data is going to become important in the future, right now in value based care, everybody talks about cutting costs, shaving a little bit more off a bundle or shaving a little bit more off an episode of care to try to get as much shared savings as possible, and everybody’s working towards this unattainable goal of zero cost-

Breanna Cunningham:
Sure.

Daniel B. Frier:
… You can’t go to zero cost.

Breanna Cunningham:
Right.

Daniel B. Frier:
In fact, we wouldn’t want a zero (0) cost. Healthcare costs have risen over the years because technology is a thousand times better than it was 20 years ago. We don’t want that to stop, we want that to continue and that’s going to require an outlay of more and more cash. There will be modalities in the next five or 10 years that are way more expensive than what we have now to treat various diseases we know, so we need to figure out a way to pay for it.

Breanna Cunningham:
Right. Which is crazy considering 17% of the GDP is healthcare.

Daniel B. Frier:
Yeah.

Breanna Cunningham:
So do you think that’s going to go up?

Daniel B. Frier:
It’s hard for me to know whether it’s going to go up as a percentage of GDP. That’s sort of outside my scope of expertise, but I don’t think that healthcare is going to get much cheaper.

Breanna Cunningham:
Sure.

Daniel B. Frier:
But we do have to control the cost. But I think when we look at the overall cost of care, it can’t just be what does it cost to do a hip replacement or a knee replacement? Or, what does it cost to treat a patient with a particular disease state with the medications? There has to be some built-in understanding of the total cost of, what does it cost to do this wrong? In other words, what does it cost if providers aren’t doing it as well as other providers?

Breanna Cunningham:
Sure.

Daniel B. Frier:
If patients aren’t recovering as quickly if they’re not able to go back to work as quickly if they’re out of work more frequently if they can’t work as productively. Those costs could far exceed the cost of healthcare itself. And I think if I were a provider, I’d want to start developing an understanding of that.

Breanna Cunningham:
Sure. Almost like the indirect costs, right?

Daniel B. Frier:
That’s right.

Breanna Cunningham:
Interesting.

Daniel B. Frier:
And I’d want to develop a data warehouse, and I would hire a data scientist to do data analytics early on, in an attempt to try to figure this all out. Because right now it’s not being focused on, but it will be, and the people that are the earliest adopters of that I think will have a huge advantage.

Breanna Cunningham:
Wow. Okay, so the take-home that I got from this, one, you can do a lot more with your data than you think, right? You’re not as restricted with de-identified data. BAAs and some legal things aren’t necessarily required. That’s important for providers to know. Second take-home, as a provider it’s time to start collecting, right?

Daniel B. Frier:
I think so.

Breanna Cunningham:
You need to have it, you need to have structured and unstructured data and really understand it and start utilizing it. And then lastly, looking at it beyond just direct costs of what is this cost of care? How much is this actual surgery? But, what’s the consequence of not doing the surgery? How would that impact the patient’s life? What’s that data look like?

Daniel B. Frier:
Sure.

Breanna Cunningham:
Anything else before we wrap up here?

Daniel B. Frier:
I think that covers a lot.

Breanna Cunningham:
This was so interesting. I think this is a subject that is a little taboo and people don’t like to talk about it. It’s not as sexy as talking about Maco or a new robot, right? But boy is it important, and it’s going to be so needed to help shift healthcare in the right direction here.

Daniel B. Frier:
I couldn’t agree more.

Breanna Cunningham:
It was a pleasure. Thank you.

Daniel B. Frier:
Thank you.

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