EP454: How the Particle v Epic Lawsuit Impacts Plan Sponsors and Public Health Trying to Get Data, With Brendan Keeler

[00:00:00] Episode 454, How the Particle v Epic Lawsuit Impacts Plan Sponsors and Public Health, Etc. Trying to Get Data. Today I speak with Brendan Keeler.

[00:00:22] American healthcare entrepreneurs and executives you want to know, talking, relentlessly seeking value.

[00:00:30] You know why I'm interested in the Particle v Epic EHR Systems lawsuit? It's because data. Say I'm thinking about this, like, say, a plan sponsor and I want data so I can do better population health or do care navigation to help my members avoid downstream bad things or steer and tier to high quality docs and point solutions and, and, and. To do anything that has anything to do with population health, I need data.

[00:00:57] And when I say data, we often think claims data as plan sponsors and we think about getting it from carriers. But where does the claims data originate?

[00:01:09] Oh, right. The gleam in the eye of a lot of claims data is EHR data. Someone types something into an EHR system that metamorphosized ultimately into a claim that wound up in a carrier's data set. Plan sponsors want the claims part of the claims data, obviously to see prices.

[00:01:26] But they also want those underlying data elements that indicate the health of their members. Said another way, they want the insights gleaned from some clinician somewhere who types something into an EHR system that turned into codes that drove claims.

[00:01:40] So, yeah, Particle versus Epic. Particle was getting EHR data and passing it on to other parties. And we get into the what's and the who's in the commentary. But bottom line, what I wanted to get into today is this.

[00:01:55] Will this lawsuit result in more access to data for downstream entities who need it or less?

[00:02:02] What are the implications here of Epic shutting down access to its EHR data to Particle and Particle filing an antitrust lawsuit saying Epic did this because Epic wanted to use their monopoly power here to advantage their own payer platform business?

[00:02:20] Oh, the plot thickens. Pay or platform business for an EHR system? What is that exactly? More intrigue. What's going on there? Because, yeah, probably a lot of plan sponsors and patients are, I'm going to say, unaware of this part of the equation as to what data the carriers seem to have and where are they getting it from and what things they may be doing with it that plan sponsors and or members who are their customers may or may not be aware of.

[00:02:47] Knowledge is power here, especially in the fight over trying to get data out of carriers who won't hand it over when the carriers themselves are getting that data through interoperability networks that potentially plan sponsors also qualify for.

[00:03:00] Chucking that in there as a point to ponder. This whole I'm intrigued bit here, though, was not rhetorical.

[00:03:05] I really am was intrigued. So intrigued, as a matter of fact, that I called Brendan Keeler to come on the pod and talk this out with me.

[00:03:12] Brendan, by the way, has written a very detailed account of the Epic Slash Particle Dustup, which I will link to in the show notes. There is a part one and a part two.

[00:03:23] Before we kick in here, though, I did just want to make at least one point on background.

[00:03:28] First, so many, many people want to get their mitts on EHR data for good reasons and maybe not so good reasons from the standpoint of the patients whose personal health information is being fought over here.

[00:03:40] The basic rule is that to get EHR data, you have to be involved in the treatment of the patient.

[00:03:49] So this is the current governance as it stands. You have to be involved in the treatment of the patient if you want EHR data.

[00:03:56] So involved in the treatment, actually, that you have to have your own treatment data to share back.

[00:04:02] This is called reciprocity, right? Like, how can you say that you're treating a patient if then you don't have any data as to that treatment?

[00:04:11] On-site clinics, by the way, are providing treatment. Just saying, in case anybody is thinking the same thing I'm thinking right now.

[00:04:17] OK, back to the lawsuit. The real kicker of this whole particle versus Epic and Epic cutting off particle thing, as far as I'm concerned,

[00:04:24] is over the secondary use of said treatment data once someone gets it, i.e., someone gets EHR data transmitted to them because they are doing something or other to treat the patient.

[00:04:36] But now they have that data. And at that point, is it a free for all what they do with it?

[00:04:41] Can they, I don't know, sell it to anyone they want? Said another way, what if I realize I need EHR data for, I don't know,

[00:04:48] I'm a lawyer trying to do lawyer things or I'm public health entity or whatever. It doesn't matter.

[00:04:54] If I throw a medical professional in a room and cook up something this person is doing that could be considered treatment if you squint at it.

[00:05:02] Tricky, right? Now I can get EHR data. So, yeah, there's that motto.

[00:05:06] If you ain't cheating, you ain't trying, which Bryce and Kona said ironically on Health Tech Nerds the other day.

[00:05:13] And I cracked up, but it's so not funny because you have some people maybe or maybe not kind of violating, let's just say, the spirit of the endeavor.

[00:05:21] And then you have others who really, really need the data to do something really, really good who can't get it.

[00:05:26] Is this because of a monopoly entity doing monopoly antitrust stuff?

[00:05:31] We discuss. But massive spoiler alert where this conversation is going is, OK, so does this lawsuit ultimately make it easier or harder to get data for righteous, good reasons?

[00:05:43] And Brendan Keillor suggests this case, this lawsuit actually could be a good thing because what it will do at a minimum is pave the path to get data and really delineate a good use case from some of this profit motivated back and forth where patient information is getting fought over.

[00:06:00] And the patient has little to no control over what goes on and neither do plan sponsors.

[00:06:05] He uses the term increased data liquidity, which is a term I think I will heretofore adopt because it will make me sound smart.

[00:06:14] Data liquidity.

[00:06:15] Lastly, lastly, lastly here, just as context, in case anyone indulges in further reading and winds up confused,

[00:06:23] there are so-called interoperability frameworks out there, such as Care Quality or Commonwealth or eHealth Exchange.

[00:06:31] These interoperability frameworks are also in this mix.

[00:06:35] We do not have all day and thus we don't get into these in the conversation that follows.

[00:06:40] But just be aware they're on and about the scene for the full skinny on what interoperability frameworks are and do listen to episode 376 with Lisa Barry.

[00:06:49] Brendan Keillor, my guest today, as a matter of fact, is on the steering committee of the Care Quality interoperability framework.

[00:06:57] Brendan Keillor has had a long history in this whole exact space.

[00:07:01] So he was the perfect guest to dig in on this topic in a really well-balanced way, I'm going to say.

[00:07:06] Brendan is currently the interoperability and data liquidity practice lead at HTD Health.

[00:07:13] My name is Stacey Richter.

[00:07:15] This podcast is sponsored by Aventria Health Group.

[00:07:18] Brendan Keillor, welcome to Relentless Health Value.

[00:07:20] Very excited to be here.

[00:07:21] If we're talking about the different ways that it's possible to get the EHR data, what is the general guideline for who can have access?

[00:07:29] Because I'm sure I can't just like place a call and get it, right?

[00:07:32] Well, you can't actually, you as an individual as a patient have the right to your own data.

[00:07:35] Yeah, you boil down all these rules and governance.

[00:07:38] There's really two main rules.

[00:07:41] One is participants have to respond to treatment queries.

[00:07:44] People would say, hey, assert, hey, I'm providing treatment.

[00:07:47] And you must contribute back your unique clinical data.

[00:07:51] Reciprocity is the name of the game here.

[00:07:54] And that's because there's no way to get to a longitudinal record if there's asymmetric relationships, which allows someone to withhold data.

[00:08:03] There's a virtuous cycle of network growth.

[00:08:05] And when people come to the table and say, I'm willing to give up my data because I can access so much more by doing so and accomplish so much more with the full longitudinal record of 60,000 organizations and contribute back to that longitudinal record to make care better for patients.

[00:08:22] Back to our original question, like I am whoever and I say, I want some data.

[00:08:27] I have to first of all show probably that I'm a healthcare professional, right?

[00:08:30] Because how am I rendering care if I'm not a healthcare professional, I would assume.

[00:08:33] And then also I have to, you know, I am saying I need the information for treatment.

[00:08:39] So therefore I'm doing something in that longitudinal journey.

[00:08:43] So the other bit of this is I can only take data if I give back what I am doing.

[00:08:49] There's two virtuous bits to that.

[00:08:52] One of them is I have to share.

[00:08:55] Also, if I'm saying I'm providing treatment, then obviously I have something to share.

[00:09:00] So number one, that but but number two, it kind of prevents the free rider problem where you get people who are worried about network leakage.

[00:09:08] So they're like taking all the data.

[00:09:10] And that actually was a big issue at the beginning of the health information exchanges where you had people who were like happy to take but very unwilling to give.

[00:09:17] Yeah, that's well put.

[00:09:19] Like any network based product has pollutants.

[00:09:22] They have people that add no value, right?

[00:09:24] That sort of just lurk and don't add value.

[00:09:27] And then they have pollutants that actively detract.

[00:09:30] So you see this across any type of network.

[00:09:31] And if there are people that add no value, don't contribute back, that's not great.

[00:09:36] That's dead weight in terms of like network burden and like performance at their minimum.

[00:09:41] But beyond that, if there are people that are abusing the network and the network rules that erodes trust, it's a troll problem.

[00:09:49] And so people say, do I really want to be part of this when privacy is being abused or my trust in these other organizations is being abused?

[00:09:58] That they're profiting off of this with no reciprocity, not giving anything back to the equation.

[00:10:04] So that's actually probably a pretty good segue and a little bit of foreshadowing.

[00:10:09] So everyone should keep that in mind.

[00:10:11] We were talking about abusing the trust of the system and the troll problem.

[00:10:15] I'm underlining the foreshadowing right now.

[00:10:18] So the next question that I have for you is, so say I get the data and I have it now.

[00:10:23] And now I want to do something else with it beyond just treat a patient.

[00:10:29] I mean, I have the data now.

[00:10:31] Are there any limits on what I can do secondarily if now the data is in my possession?

[00:10:40] Secondary use is a principle that has evolved in the regulatory landscape that says, you know what, like if I'm pulling for treatment, but then and then pulled it into the director and started to use it.

[00:10:52] Well, I need to go then use it for secondary purposes.

[00:10:55] I can't sort of segment it within my operations.

[00:10:58] And that makes sense for like a health care organization.

[00:11:01] They're doing, let's say claims is sent over to them.

[00:11:05] They've used the claims from the claims processing and done the full payment with the patient.

[00:11:10] Well, then they're going to say, you know, I got to use these claims for analytics, for population health, for cost.

[00:11:17] And so there's real reasons for secondary use.

[00:11:20] Is paying claims considered treatment?

[00:11:22] So paying claims would not be considered treatment.

[00:11:24] But I was using claims as the example of a data exchange where after I've done that data exchange via clearinghouses, I have claims data as a provider and I can use it for other purposes generally.

[00:11:36] Part of the problem, though, is that with this in place, secondary use can allow for transfer to other entities.

[00:11:42] And so from a legal standpoint, 100% legal.

[00:11:46] From a network rule standpoint, I think that's what's there's still active disputes and things being debated there.

[00:11:52] Okay, so it's 100% part of the network rules that once you have data in your possession, because treatment slash reciprocity requirements fulfilled, are there limits on what you can do with said data you now have in your systems, especially since that data is now all mixed up with other data that you probably had already?

[00:12:14] It just comes down to how streamlined can you turn this from, you know, let's use treatment for treatment and then use it for other things internally to let's create a very streamlined or non-existent treatment and then pass to whoever we want via secondary use.

[00:12:31] Okay, so right now, someone, an entity could kind of off the sides of their desks, do something that could pass for treatment and then get access to data they really want for some other reason, a reason that is actually not secondary.

[00:12:44] It's their primary reason to want the data in the first place.

[00:12:48] And they're just doing what they need to do in order to get it, which is something that could pass in our quotes as treatment.

[00:12:54] People think of the provider, like doctors and doctor organizations being very heavily regulated, and they are, but not in the aspect of creation.

[00:13:03] Like I can find one doctor pretty easily, bring them on board and spin up an organization and get an MPI and get listed everywhere as a provider organization, almost trivially, not trivially, there's whole services that do this, but like it is not a bank, right?

[00:13:18] Like a bank and banking is a charter and you can go through all these processes and you can only become a bank and get banking superpowers after years of trials and tribulations and millions of dollars spend.

[00:13:29] Not the case for creating a lightweight provider organization.

[00:13:33] And the point that you're making here, just to interject, the point that you're making is that let's just say my main goal is to get my hands on data.

[00:13:41] Like I have recognized that there's a lot of different, like everybody knows you can monetize data.

[00:13:48] So I'm like, you know what?

[00:13:50] You know how I'm going to get this data?

[00:13:52] I'm going to hang up a shingle.

[00:13:54] I am actually, I have an MPI number, national prescribing number.

[00:13:57] So, you know, I'm an MD or I can hire one to sit in a room and now I can tap into this network.

[00:14:04] And the reciprocity might be a little bit of a question mark there.

[00:14:07] But like on its face, I can say I'm treating patients.

[00:14:11] Is that kind of the point that you're making?

[00:14:13] Correct.

[00:14:13] There's this whole spectrum of how much treatment, like treating is binary.

[00:14:18] I'm providing treatment.

[00:14:19] But then like, where is the line of sand where that devolves into you're just saying that you've done the logistics to spin up something for another as a vehicle for something entirely different.

[00:14:30] So it is not in the spirit of the endeavor.

[00:14:32] Some would argue that.

[00:14:33] I try not to be opinionated or have biases here.

[00:14:35] If you're following the law and network rules to accomplish a business goal, you know, we can say it's immoral or unethical.

[00:14:43] That's a different discussion.

[00:14:44] But that one that I really want to have.

[00:14:46] But what data are you providing back?

[00:14:48] Like if you're not actually providing treatment, then you're not going to meet the reciprocity.

[00:14:52] I think there are creative ways that applications can use to and do use to provide back a very minimal data set.

[00:15:03] So regurgitating some of the data they've consumed, creating a lightweight note that says, I saw the patient.

[00:15:09] There's a hundred things that potentially could be done to give them the feeling that they've met the reciprocity and that they can attest to providing treatment.

[00:15:20] So if we're kind of moving into the what happened in the particle, the epic, it has to do with a bunch of the different things that we talked about right now.

[00:15:29] It has to do, first of all, with what is the secondary use?

[00:15:32] If I'm just kind of offering a little bit of what is relevant relative to what we just talked about in this case, like there's a secondary use component.

[00:15:40] And then there's also a who gets the data and what is treatment component, I think.

[00:15:45] This whole thing started back in April.

[00:15:47] I will say that Brendan wrote a very comprehensive part one and part two about this whole dust up.

[00:15:52] So if anybody is really intrigued, we'll link to the sub stack in the show notes.

[00:15:57] But what at the very highest level happened there?

[00:16:01] And what was Particle accusing Epic of in the lawsuit that transpired with this dust up?

[00:16:05] I do want to say that there's a good reason saying Epic v Particle, Particle v.Epic.

[00:16:10] The dispute in the spring was Epic v Particle.

[00:16:14] You know, it wasn't a lawsuit, but it was Epic saying that Particle was doing something wrong.

[00:16:20] But this whole dispute there is just centered around certain customers that were doing this secondary use or doing early lightweight, you know, treatment,

[00:16:29] or maybe even doing no treatment at all, were breaking network rules and they shut off.

[00:16:35] So Particle was getting data out of, you know, basically it was coming out of Epic and they had spun up something, question mark, was it actually treatment?

[00:16:47] But then they also were giving it to other people.

[00:16:49] Specifically, I think, and you should read the articles for a full breakdown, but Particle was used to facilitate their customers,

[00:16:55] a handful of their customers to serve use cases that were not treatment.

[00:16:58] So specifically, some were helping payers, some were helping mass tort law firms retrieve data to do lawsuits,

[00:17:07] and some were doing personal health records.

[00:17:10] So individuals that were not necessarily, there were no providers were on staff.

[00:17:15] So those are some of the non-treatment use cases that were central to the dispute.

[00:17:19] Again, detailed in last spring's article.

[00:17:23] And Epic took the action of shutting off some of the connectivity and then initiating some of the dispute governance processes.

[00:17:29] And so that was ongoing all summer.

[00:17:32] And then Particle initiated Particle v. Epic, which is the antitrust lawsuit against Epic.

[00:17:39] While we can focus on the dispute of last spring,

[00:17:41] actually, it is just the genesis of an antitrust lawsuit against Epic,

[00:17:48] which says that Epic, because of their variety of, you know,

[00:17:53] they have actually several claims of monopoly and antitrust in their complaint.

[00:17:57] But because of a market dominance, has been behaving anti-competitively.

[00:18:03] And so actually sent like all the stuff from the spring is important

[00:18:07] because it plays into and funnels into this antitrust lawsuit,

[00:18:11] which is about has Epic behaved anti-competitively because of a monopoly or market, centralized market power.

[00:18:19] Well, it does kind of beg the question,

[00:18:21] how did Epic get to decide unilaterally that it was not happy with what was going on here?

[00:18:28] And just, you know, like, is it Epic's data or is it all of their customers' data?

[00:18:34] Do you know what I mean?

[00:18:36] Like, why does one entity get to make that call?

[00:18:39] When answering that question, there are ways to respond emotionally about it.

[00:18:44] And there are ways to view potential arguments on both sides.

[00:18:47] So some might argue that it is an anti-competitive behavior meant to foreclose competition.

[00:18:53] So it's important to define those things.

[00:18:55] And others may say any participant in a collaborative network

[00:18:59] has the right to participate in that network and to protect their customers and the patients that they represent.

[00:19:06] I think that sort of articulates the two sides here,

[00:19:08] that if you are participating on Visa or MasterCard,

[00:19:12] you would go through their governance.

[00:19:14] You would also maybe shut off some organizations that you perceive to be fraudulent actors.

[00:19:19] And so did Epic break network rules?

[00:19:23] Important to discuss and figure out.

[00:19:25] Did they behave anti-competitively is actually more important now than the discussion there.

[00:19:32] Which is actually what this lawsuit is about.

[00:19:36] Because the lawsuit alleged that Epic was trying to stand up a payer platform business

[00:19:41] that was competing against what Particle was doing,

[00:19:44] which is why they're suggesting or alleging.

[00:19:48] That's it.

[00:19:49] Why they're alleging.

[00:19:50] It's a complaint, right?

[00:19:51] And it's a claim.

[00:19:52] And that claim needs to be proven in the court of law with evidence.

[00:19:55] And specifically, they have a bunch of different claims.

[00:19:58] They say that the Sherman Act, which is one of the most important,

[00:20:01] you know, national, federal, antitrust and monopoly pieces of legislation,

[00:20:06] that they violated that.

[00:20:07] Because Epic has dominant market share in that payer platform.

[00:20:11] And they use that.

[00:20:12] What is this payer platform?

[00:20:14] Just let's, like, what is the payer platform that Epic has?

[00:20:18] In that space we talked about earlier of facilitating those underserved use cases

[00:20:23] of provider and payer collaboration, there are a number of tools.

[00:20:28] And Epic offers one where they say, we have the Epic customer base.

[00:20:32] And because of that, Humana or Blues or whoever,

[00:20:35] if you install this piece of software,

[00:20:37] we will facilitate clinical data retrieval, prior authorization,

[00:20:43] care gap closure, all these different use cases.

[00:20:45] And it is expensive.

[00:20:47] And it is certainly a growth area for them.

[00:20:50] So what Particle is alleging and saying is that Epic has a dominant market share.

[00:20:54] And they're using their market power in the provider side

[00:20:57] to behave anticompetitively for this new product.

[00:21:00] They're not really focusing on the provider side of things.

[00:21:02] They're saying, in this new market, Epic is behaving anticompetitively.

[00:21:05] And they're leveraging market power in another area,

[00:21:08] as well as their own dominance in the payer platform area to behave anticompetitively.

[00:21:13] So there's, like, separate claims there.

[00:21:14] One is monopolization.

[00:21:16] Epic has a monopoly in payer platform.

[00:21:19] They allege.

[00:21:20] Two is leveraging.

[00:21:21] They are using market power in the provider side to behave anticompetitively.

[00:21:25] As you go through these claims, there's parts that are strong.

[00:21:27] And there's parts that are weaker.

[00:21:29] And so in particular, I'm not a lawyer.

[00:21:32] I'm also not, like, fully, like, in the weeds doing analysis on the market.

[00:21:36] But there are a lot of other players in the payer platform market.

[00:21:40] So, you know, the data vans and the moxies and the vims.

[00:21:43] And so to say they will have to prove a monopoly before that.

[00:21:49] And, like, the fact that they have a lot of verbiage around, like,

[00:21:52] we were the first to see this market aside from Epic.

[00:21:55] And we are the only other player in the market.

[00:21:57] And payviders are new in the past three years, which those are all, like,

[00:22:02] those are all dubious statements.

[00:22:03] Debatable.

[00:22:05] But that's okay.

[00:22:06] They have a lot of time.

[00:22:07] This will be a long, drawn-out process.

[00:22:09] And so the lawyers will have to actually, you know,

[00:22:11] move from some of the more metaphoric and emotional language of this opening

[00:22:15] complaint, which they often are, to concrete facts proven in a court of law.

[00:22:20] Because market definition is super important when doing antitrust case.

[00:22:25] The other one is the leveraging, which is saying Epic has a dominant footprint in the

[00:22:31] provider market and use that to behave anti-competitively.

[00:22:35] And that could be true.

[00:22:37] That is harder to deny at the face value.

[00:22:39] But they just have to prove the behaviors, anti-competitive behaviors, for that to see that through.

[00:22:46] This is complicated on a good day.

[00:22:48] With a lot going on in a number of different spheres, which even makes it more complicated, right?

[00:22:55] Like, because we've got the issue of what's going on with the data and who has rights to the data.

[00:22:59] We've got the whole interoperability kind of layer of complexity.

[00:23:02] We've got the, what is the secondary use?

[00:23:05] And just all the kind of like regs about that that are sort of flying around.

[00:23:09] But if I was going to distill this down to what are the takeaways here for somebody that's not maybe enmeshed in the belly of this particular beast?

[00:23:18] If I'm thinking about this from the standpoint of like an employer who is fighting every single day to try to figure out how to get their own data,

[00:23:26] they're trying to do care navigation.

[00:23:28] They're trying to make sure that their patients don't wind up going to a low quality provider to get some service that's going to wind up costing five times as much for not a good outcome, right?

[00:23:38] Like, if I'm thinking about this as an employer, does this, does what's going on with this Epic V particle or particle V Epic or just anything that we've talked about,

[00:23:46] does that have any bearing on some employer somewhere who's like, can I just have my data already?

[00:23:52] I'm a man of internal optimism.

[00:23:54] And so like my actual optimistic take here is that the 95, 99% outcome in one way or another is increased data liquidity.

[00:24:04] And so the operations use case, this payer provider interaction will be facilitated faster in some fashion.

[00:24:14] And that could be via the secondary use pathway, or that could be via like a formalized operations use case,

[00:24:20] or just numerous other patterns.

[00:24:24] Like I don't actually know, I don't have a crystal ball to know which one will result.

[00:24:28] But this puts pressure and intense pressure and intense limelight on let's solve this.

[00:24:35] And so I expect acceleration on the networks to facilitate operations and participation by providers and payers.

[00:24:43] And then if the lawsuit is seen through, and it legitimizes the secondary use pattern, and that becomes a pattern for exchange.

[00:24:52] I don't know that's the optimal one.

[00:24:54] But in network creation, and then also in any sort of technology, the best pattern or the most morally or ethically good one,

[00:25:02] or the one that provides the best transparency, isn't always the one that is cemented into the way we do things.

[00:25:08] And it leaves room.

[00:25:09] Whatever we create leaves room for improvement.

[00:25:11] If I'm understanding what this lawsuit and just the whole affair has accomplished relative to an employer trying to get data,

[00:25:25] is it's forcing everyone to actually write down and document like, what's the rule here?

[00:25:33] What's the pathway by which this happens?

[00:25:35] Like, let's just get this all down on a piece of paper.

[00:25:39] Which, you know, like anytime there's a gray zone or people aren't quite sure,

[00:25:45] and every time somebody wants to do something, you have to get 10 lawyers and throw them in a room,

[00:25:49] and then they talk about it for a really long time.

[00:25:51] Like anytime there's any sort of opaqueness or vagary,

[00:25:56] that, even if it's not the intent, can shut down the pathway or shut down trying to,

[00:26:04] somebody trying to do something, even if it's right and even if that wasn't the intent.

[00:26:09] So what this lawsuit will do is it will force everybody to basically be like, these are the rules.

[00:26:14] This is how you do it.

[00:26:15] That's what we've already seen, right?

[00:26:17] We've seen that since the spring.

[00:26:19] More progress on sort of the air to all these networks,

[00:26:22] the trusted exchange framework and common agreement, which is another new government.

[00:26:27] The old TEFCA.

[00:26:28] TEFCA, exactly.

[00:26:30] There's been more progress in three or four months since then,

[00:26:33] than the rest of whatever, since 2016 when the Cures Act was passed.

[00:26:38] And that is because people are waking up to that.

[00:26:41] There are such strong market demands by non-provider entities.

[00:26:46] So from provider to payer, from provider to employer, from payer to employer,

[00:26:52] like connect every entity that operates and say,

[00:26:55] are they digitally served with ubiquitous networks yet?

[00:26:58] And you'll see how far we have to go in a way that has transparency.

[00:27:03] It is equitable in the sense of it doesn't come with asymmetry

[00:27:08] that allows for patients to access their data.

[00:27:12] I think 99% of people who operate in this space are trying to solve a problem

[00:27:17] that is underserved today.

[00:27:19] People that are doing mass tort need healthcare data.

[00:27:23] Payers that need to do care management need healthcare data

[00:27:25] and need to solve these problems.

[00:27:27] And so I don't blame people for trying to solve those solutions.

[00:27:30] But I just look at it from a network dynamics and practical sense of

[00:27:34] how do we want to build this solution at a national scale,

[00:27:37] an infrastructure scale.

[00:27:39] So my slight preference is towards ones,

[00:27:41] any solution that has the levels of transparency and reciprocity

[00:27:45] that encourage virtuous cycles and trust.

[00:27:48] But at the same time, if we get to an end result where

[00:27:50] the job to be done is completed and we've lowered operational costs

[00:27:55] and increased efficiency in healthcare and help patients get better,

[00:27:58] I'd be super happy to.

[00:28:00] Beyond the employer use case that we just talked about,

[00:28:04] is there any other entity that you want to underline right now

[00:28:10] that may be impacted by what's likely to come out of this rule cementing?

[00:28:17] Like is somebody suddenly not going to have access to data

[00:28:20] because they are kind of getting it vis-a-vis scurrilous means

[00:28:23] that we should be aware of and or the flip side,

[00:28:26] like somebody has been a little bit less organized or a little bit less litigious or whatever

[00:28:30] and hasn't been getting data that they really need.

[00:28:33] And now they may actually have a chance of getting it beyond employers.

[00:28:36] Short term, I think more policing,

[00:28:39] people will see tightening if they are on the edge,

[00:28:42] if they're in that gray zone.

[00:28:43] But that was always a risk.

[00:28:45] There's people have risk tolerance in their interpretation of any rule,

[00:28:48] statute or governance.

[00:28:50] And so when you take a risk and you live in the gray zone,

[00:28:52] you have an existential risk, you pulled that risk onto your organization's book of business.

[00:28:58] And so when you're cut off, that was a strategic choice that people took.

[00:29:01] Yellow flag is flying for anybody who may not actually be providing much,

[00:29:08] you know, in air quotes,

[00:29:09] treatment for the treatment that they're suggesting that they're providing.

[00:29:13] Right.

[00:29:13] So if anybody happens to be in that category,

[00:29:15] maybe, you know, now would be a good time to reassess what is going on there.

[00:29:20] Yeah.

[00:29:21] Yeah.

[00:29:21] And strengthen the care that you provide and make sure that you have a really strong

[00:29:26] narrative there.

[00:29:27] Because if you don't, you weren't providing treatment and you were probably misusing the

[00:29:31] networks.

[00:29:32] You know, I think there's a lot of people that are like,

[00:29:34] oh shit, like this is an F-sectomy, but like our providers,

[00:29:37] because by and large, the fraud and abuse on networks today is minimal.

[00:29:41] But that being said,

[00:29:42] the future is really positive in the sense that we have this acceleration towards paved

[00:29:48] paths for this use case prepares for operations.

[00:29:53] Public health suddenly is playing in this and using Tuftga effectively,

[00:29:57] which is net new and good, right?

[00:29:59] That's not treatment, but it's a separate use case.

[00:30:01] And suddenly it's been enabled.

[00:30:03] Individuals having access to their data is a huge one that will remove a ton of this,

[00:30:09] a ton of incentive for fraud and abuse, because all of a sudden, if I can get Brent in front

[00:30:14] of me, identity proof from get his consent, I can use these rails.

[00:30:20] And so with that in place, so I was like, I don't need to take on the risk.

[00:30:25] They're like a risky gray area approach.

[00:30:28] I can use the paved path.

[00:30:30] So I think longer term and actually even medium term, the addition of all these paved

[00:30:34] paths and the adoption of them is going to meet this like this weird blip.

[00:30:42] We're going to have some other problems to focus on in the future.

[00:30:45] What I'm hearing you say is the upside here could be for public health, which you mentioned,

[00:30:50] which has had some issues getting data that they legit probably need.

[00:30:55] So that could be one potential advantage of having these paved paths, as you said,

[00:31:01] and these rails kind of laid out that entities, again, who have been a little bit on the outside

[00:31:05] looking in for whatever reason now may be able to access information that is required for them

[00:31:11] to do their job.

[00:31:12] But then also patients themselves who again, aren't like organizing and standing up things

[00:31:18] to get some of this data.

[00:31:20] This will also help them.

[00:31:22] Yeah, but the patients are, you know, with the HIPAA right of access and then enabled

[00:31:27] with these networks can facilitate a bunch of other organizations.

[00:31:31] So if I'm as far out of a clinical trial, oh, wow, I can get the patient in front of me.

[00:31:37] I can identity proof them and get their consent and facilitate the sharing of their data for

[00:31:41] that purpose.

[00:31:42] Like you can imagine that use case.

[00:31:43] If I am a patient and I walk into a health system, the health system or an entity, right?

[00:31:49] I can say, Brendan, can I go get your data?

[00:31:52] Would you authorize me to go get all of the rest of your data?

[00:31:55] Because we here can use it for the blah, blah, blah.

[00:31:58] And then as soon as I get Brendan's consent, I can go get your data.

[00:32:03] Well, yeah, providers can already do that.

[00:32:05] But like you walk into a CRO, these research orgs, and you're doing a clinical trial.

[00:32:09] You are working with a law firm.

[00:32:12] You're working with any of these non-HIPAA entities.

[00:32:15] Then the identity proofing, proving who you are so that you're not taking little Wayne's

[00:32:20] information or something.

[00:32:21] And then getting your consent.

[00:32:23] Yeah, is something that could be once enabled, removed, like really let off the steam that's

[00:32:29] pent up for the demand that's pent up by having to pave paths for that, that really is enabling

[00:32:36] of the patient rather than sort of the murky secondary use for non-HIPAA entities.

[00:32:42] Fraud and abuse are always a function of any ubiquitous network, right?

[00:32:47] You have Visa and MasterCard that could combat fraud and abuse, but it will be drastically

[00:32:52] reduced by serving the use cases that it needs to serve.

[00:32:55] Brendan, is there anything I neglected to ask you that you think is really important to

[00:32:59] sum up here?

[00:32:59] We could probably go on for a lot longer digging into this because like you said, it is many

[00:33:05] pent up frustrations, right?

[00:33:07] Frustration with Epic as a dominant player.

[00:33:09] Frustration with Epic because its UI isn't what I expect as a provider and because it's

[00:33:14] kind of dated.

[00:33:15] Frustration with the cost of healthcare.

[00:33:18] All these grievances are kind of going to be lumped in on this case and potentially lead

[00:33:24] to other cases.

[00:33:24] We're moving from legislative era to a regulatory era that we've seen and now to an era of judicial

[00:33:32] era, to an era of court cases where we see Cardicle suing Epic.

[00:33:36] We see real-time medical systems suing Pointclic Care, the dominant skilled nursing facility,

[00:33:41] EHR.

[00:33:42] And so there's a potential that we see a lot more of either antitrust action from the FTC

[00:33:46] or Department of Justice.

[00:33:47] But all this to say, it's one thing that Particle is doing that some are seeing as mobile and

[00:33:53] good and regardless will have impact is acting as a vehicle for a lot of pent up frustrations

[00:34:00] and a lot of thoughts people have had.

[00:34:04] How that will play out remains to be seen, but there will be net good, at least in the

[00:34:10] myopic focus of these networks, it will be net good by facilitating better access via one

[00:34:17] way or the other.

[00:34:17] That's the only thing I can nearly guarantee.

[00:34:20] Please definitely check out the website for additional links for much deeper information

[00:34:25] into what we just talked about today, which includes Brendan Keillor's really great sub

[00:34:32] stack.

[00:34:32] Brendan Keillor, thank you so much for being on Relentless Health Value today.

[00:34:35] Yeah, thanks for having me.

[00:34:36] Hi, this is Tom Nash, one of the RHV team members.

[00:34:39] You might recognize my voice from the podcast intro.

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[00:34:50] tip jar.

[00:34:51] Thanks so much for listening.