Meanwhile, a healthcare information technology professional and disgruntled federal IT policy observer said he has filed a request under the federal Freedom of Information Act for copies of agendas and minutes of the most recent HHS-sponsored meetings.
“I'm a stickler for following the rules,” said Brian Ahier, a health IT professional, IT blogger and a member of the city council in the Dalles, Ore., who as a public official routinely complies with what he describes as a strict state open-door law. Ahier has written and posted protests about the closed-door sessions.
“With billions of dollars of stimulus funds on the line, and major stakeholders represented on these committees and work groups, it is imperative to avoid even a whiff of impropriety,” Ahier wrote.
“I'm really concerned that the spirit of the open government directive is being violated here,” Ahier said in a telephone interview.
At issue is an interpretation of the Federal Advisory Committee Act, or FACA, and the applicability of federal open-door rules to the work groups and subcommittees of FACA advisory panels.
For decades, the government has relied on the advice of committees of subject-matter experts and advocates. Today, the government sponsors more than 1,000 FACA advisory panels, according to histories of their organization and explanations of their operations at two Web sites maintained by the Committee Management Secretariat at the General Services Administration.
The secretariat provides training and guidance for various government officials on setting up and running FACA panels. The FACA requires that for most advisory committee meetings public notice and the agenda of a meeting be published in advance and the meetings themselves be held in public. If a meeting isn't open, the notice should cite one of 10 specific “sunshine law” exceptions under which meetings appropriately can be closed, according to Kennett Fussell, deputy director of the secretariat.
But variance comes into play when it comes to subcommittees and work groups, Fussell said.
The statute, according to Fussell, clearly makes subcommittees and work groups subject to the same open-door provisions as FACA panels. But the secretariat, through the GSA, after a four-year rulemaking effort, published in 2001 a federal rule governing FACA meetings that relied more on case law than on the statute, Fussell said. The rule gave federal agencies some wiggle room when it came to FACA subcommittees and work groups.
“The law is very clear that subcommittees, work groups, and anything that looks and quacks like a committee,” is covered under the same open meetings requirement as full FACA committees, Fussell said.
But, he said, federal agencies also “have some room to operate” if their legal counsel relies on “our rule back in 2001,” Fussell said. “They tend to stretch that. Not everybody sees the openness as beneficial as some others of us do. They take a look and say, well, the openness requirements of FACA do not necessarily apply to subcommittees that report to advisory committees.”
Fussell said legislation is pending in the House to clarify the intent of Congress on this issue. Meanwhile, the secretariat is advising agencies that position is no longer the take of the Obama administration.
“Our guidance of late had been you should operate subcommittees as you would regular committees,” Fussell said, but government, “is a train on a track.” Changing direction takes time, he said.
On Dec. 8, a privacy and security work group under the Health Information Technology Policy Committee, a FACA advisory panel, met for the first time in closed-door session. It was the same day the Office of Management and Budget released its 11-page missive on open and transparent government. The HIT Policy Committee and its sister HIT Standards Committee were created under the authority of the American Recovery and Reinvestment Act of 2009 to advise HHS' Office of the National Coordinator for Health Information Technology.
No public notice was given for the meeting on the Web pages for the HIT Policy Committee at the ONC Web site.
The privacy and security work group meeting was chaired by privacy expert Deven McGraw, director of the Health Privacy Project at the Center for Democracy and Technology, a Washington-based think tank.
Ahier said it was “kind of ironic” that on the day the OMB open-government directive was released HHS hosted a closed meeting on privacy and security.
On Dec. 16, the HIT Policy Committee's work group on the proposed national health information network met in public session from 10 a.m. until about 12:50 p.m., then re-convened behind closed doors.
The ONC published in the Federal Register Nov. 30 a notice about the date, time and location of the NHIN work group meeting, saying it would be open to the public. Nothing in that Federal Register notice indicated half of the meeting would be closed, however. The Federal Register posting said that, “Notice of this meeting is given under the Federal Advisory Committee Act.” An agenda for the NHIN work group meeting on an HIT Policy Committee's Web page posted several days before the meeting included reference to the close-door portion of the upcoming meeting, but made no mention of the meeting being run under FACA rules.
Ahier noted if the ONC was following FACA rules on the NHIN work group, under those rules it was obliged to state the reason the meeting was being closed to the public.
The ONC has not provided Modern Healthcare a response to multiple requests for a citation of its legal authority to close the meetings, nor a rationale for closing the meetings, even if there should be legal authority to do so.
On Dec. 18, the President's Council of Advisors on Science and Technology, or PCAST, held a work group meeting on HIT at the National Academies of Science. PCAST is administered by the White House Office of Science and Technology Policy.
Rick Weiss, director of strategic communications and senior science and technology policy analyst for the Office of Science and Technology Policy, in an e-mail, cited a section of the federal rule, that, “In general, the requirements of the act and the policies of this Federal Advisory Committee Management part do not apply to subcommittees of advisory committees that report to a parent advisory committee and not directly to a federal officer or agency.” But, according to the same citation, “this section does not preclude an agency from applying any provision of the Act and this part to any subcommittee of an advisory committee in any particular instance.” In other words, even before a change of policy with the Obama administration, a FACA committee was not barred by the rule from holding subcommittee meetings in public even if it is not obliged to do so.
Thus far, Weiss has not responded to the question of why the PCAST held the meeting in private.
McGraw was joined at the PCAST meeting by John Halamka, a physician who is chief information officer at Harvard Medical School and Beth Israel Deaconess Medical Center, Boston. Halamka serves as chairman of the federally funded Healthcare Information Technology Standards Panel and is vice chairman of the Healthcare IT Standards Committee, which also operates under FACA.
No advanced notice or agenda of the daylong meeting was published on the PCAST Web site. Nothing about the meeting—who attended, who presented, what was the agenda—has been published there since Halamka participated in both the NHIN work group and the PCAST HIT work group meetings that day.
The PCAST work group, Halamka said, “can make recommendations to PCAST, publicly, and of course all of the open, transparent processes follow. Anything it produces is absolutely transparent.”
“I've participated in one planning session so far,” Halamka said. “It was just a very early planning session, in just asking about what scope we should talk about things.
“I'm a fan of transparency,” Halamka said. “There are so many meetings going on right now, that everybody is trying their very best to communicate—every handout and every meeting notification—so it may be just the planning that goes on behind this is the pre-work for the upcoming discussion. The pre-work is just truly administrative in nature. I would absolutely support any effort in transparency and open communication.”
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