Memorandum for Dr. Suhas “Micky” Tripathi
From: /s/ Randall J. Hall, Acting Designated Agency Ethics Official, Department Of Health and Human Services
Subject: Limited Waiver of Executive Order 13989 for Dr. Suhas “Micky” Tripathi
Date: March 30, 2021
Pursuant to Section 3 of Executive Order 13989 “Ethics Commitments by Executive Branch Personnel” (Executive Order), I hereby grant a limited waiver of the requirements in Paragraph 2 of Section 1 of the Executive Order for Dr. Suhas “Micky” Tripathi with respect to the non-profit entities Health Level Seven, Inc. and the Sequoia Project. Following consultation with the Counsel to the President, it has been determined that Dr. Tripathi’s participation in official matters involving these entities in his capacity of National Coordinator for Health Information Technology at the Department of Health and Human Services is in the public interest and, therefore, warrants a waiver.
Background
Section 1 of the Executive Order contains a pledge that requires all covered political appointees to abide by certain commitments (Ethics Pledge). Paragraph 2 of the Ethics Pledge provides that a covered appointee may not participate in any official matter involving specific parties that is directly and substantially related to an appointee’s former employer, for two years from the date of appointment. Section 2(k) of the Executive Order defines “former employer” as “any person for whom the appointee has within the 2 years prior to the date of his or her appointment served as an employee, officer, director, trustee, or general partner,” excluding certain government entities and international organizations. Section 2(m) of the Executive Order defines “directly and substantially related” to an appointee’s former employer as matters in which the appointee’s former employer “is a party or represents a party.” The purpose of Paragraph 2 of the Ethics Pledge is to address concerns that a former employer may have, or appear to have, privileged access to a covered appointee.
Section 3(a) of the Executive Order provides that the Director of the Office of Management and Budget, in consultation with the Counsel to the President, may grant a waiver of the restrictions in the Ethics Pledge to a political appointee, if it is in the public interest to do so or if the literal application of a restriction is inconsistent with the purposes of the restriction. The authority to grant a waiver to the Ethics Pledge has been delegated to Designated Agency Ethics Officials. Memorandum from Rob Fairweather, Acting Director, Office of Management and Budget, Executive Office of the President (February 16, 2021), see also, Office of Government Ethics, LA-21-04, Waiver Authority and Making Waivers Public under Section 3 of Executive Order 13989, “Ethics Commitments by Executive Branch Personnel” (Feb. 18, 2021).
As National Coordinator, Dr. Tripathi leads the formulation of the federal health IT strategy and coordinates federal health IT policies, standards, programs, and investments. He is a leading expert in the field of health information technology, with over 20 years of experience. Prior to his appointment as National Coordinator, Dr. Triapthi served as the chief alliance officer for Arcadia, a health care data and software company focused on population health management and value-based care, the project manager of the Argonaut Project, an industry collaboration to accelerate the adoption of FHIR, and a board member of Health Level Seven, Inc (HL7), the Sequoia Project, the CommonWell Health Alliance, and the CARIN Alliance.
Prior to that, he was the president and CEO of the Massachusetts eHealth Collaborative, the founding president and CEO of the Indiana Health Information Exchange, an executive advisor to investment firm LRVHealth, and a fellow at the Berkman-Klein Center for Internet and Society at Harvard University. In addition, Dr. Tripathi previously was involved with the Joint HIT Policy and Standards Committee, which operated under the Federal Advisory Committee Act, serving as the co-chair of the committee’s JASON Task Force. The task force focused on challenges around building a nationwide architecture for clinical care and health research.
Dr. Tripathi holds a Ph.D. in political science from the Massachusetts Institute of Technology, a Master of Public Policy from Harvard University, and an A.B. in political science from Vassar College. Before receiving his PhD, he was a presidential management fellow and a senior operations research analyst in the Office of the Secretary of Defense in Washington, DC, for which he received the Secretary of Defense Meritorious Civilian Service Medal.
Due to his service on the boards of HL7 and the Sequoia Project, under Paragraph 2 of the Ethics Pledge, absent a waiver, Dr. Tripathi would not be able to participate in official matters where either organization was a party or represented a party. Both organizations are heavily involved in health IT issues and are uniquely engaged with the work of the Office of the National Coordinator (ONC). Being recused from official matters where HL7 or the Sequoia Project is a party would preclude him from effectively performing the duties of National Coordinator. It would not be in the public interest to deprive ONC of Dr. Tripathi’s subject matter expertise and leadership and, because of the nature of the existing relationships between ONC and entities in question, the literal application of the restriction is inconsistent with the purposes of the restriction.
Analysis Pertaining to Health Level Seven, Inc.
HL7 is the predominant health care standards developing organization. A nonprofit operating under 28 U.S.C. § 501(c)(6), the volunteer-driven organization brings together software and electronic health record developers and users of those systems to develop standards that enable the interoperability of health data across health care applications. HL7 provides a comprehensive framework and related standards for the exchange, integration, sharing, and retrieval of electronic health information that supports clinical practice and the management, delivery and evaluation of health services.
Continued engagement with HL7 is essential to ONC's mission and requires the active involvement of the National Coordinator. ONC has promulgated regulations that adopt several standards developed by HL7. In the 2020 Cures Act Final Rule, ONC adopted HL7’s Fast Healthcare Interoperability Resources Specification as the standard for exchanging health care information electronically. All electronic health record developers participating in ONC’s Health IT Certification Program will be required to use the HL7-developed standard. In addition, ONC also has several cooperative agreements with HL7 to address standards gaps or to accelerate interoperability progress. Over the next several years, ONC will likely need to fund additional cooperative agreements with HL7 to address emerging needs
Effective leadership of ONC requires the National Coordinator to participate in matters where HL7 is a party. If Dr. Tripathi was recused from to participation in official matters where HL7 was a party, he would be unable to engage in many key functions of the National Coordinator position regarding critical areas of ONC’s responsibilities; for example, he would not be able to communicate with HL7 about the deployment of standards the organization developed or the development or adoption of any future standards, make funding decisions regarding cooperative agreements with the organization, or otherwise engage with the main health IT standard setting organization in the United States.
As a leading expert of health information technology, it is in the public interest for Dr. Tripathi to be able to participate in official matters involving HL7 as a party. A significant reason that Dr. Tripathi was appointed to be National Coordinator because of his knowledge of interoperability standards and processes to exchanging health care information electronically. It is a benefit to the Government that he has experience with HL7, which deepened his subject matter expertise. Were he unable to participate in official matters involving HL7 as a party, his effectiveness as National Coordinator would be severely reduced and the Government would be deprived of his expertise and leadership.
In addition, the literal application of the restriction to this situation is inconsistent with the purposes of the restriction. Dr. Tripathi’s past service on the board of HL7 will not meaningfully change the access HL7 has to ONC, because ONC is already a key stakeholder in the work of HL7 and would work closely with the organization regardless of Dr. Tripathi’s past service. HL7 is a volunteer-driven non-profit focused on the centralized development of common standards to be used by a wide array of entities across an entire economic sector, including working closely with government stakeholders such as ONC. The organization works with a wide variety of entities to develop common standards that can be effectively used by a wide variety of entities; to that end, ONC and other portion of the Federal Government provide input to HL7. ONC has common agreements with HL7 precisely because both entities are working to promote interoperability in a standardized manner, something that benefits the public.
Analysis Pertaining to the Sequoia Project
The Sequoia Project is nonprofit non-stock membership corporation operating under 28 U.S.C. § 501(c)(3) whose mission is to advance implementation of secure, trusted and interoperable exchange of health information nationwide through public-private collaboration. The organization acts as a neutral body, inclusive of diverse participants such as government and industry, which allows it to create practical solutions to data exchange. It has established governance processes to ensure transparent oversight, including government liaisons from multiple federal Departments and agencies. The Sequoia Project has two distinct subsidiaries, the Healtheway, Inc. and Carequality, Inc. Healtheway operates eHealth Exchange, the largest health care information network in the country, which was originally managed by ONC. Carequality convenes representatives such as electronic health record developers, record locater service providers, and other networks to work on technical and policy agreements to enable data to flow between and among networks, platforms, and geographies.
In 2019, through a competitive process, ONC awarded a cooperative agreement to the Sequoia Project to assist ONC to meet its obligations under the 21st Century Cures Act. The Act requires ONC to convene public-public partnerships to build consensus and develop or support a trusted exchange framework, including a common agreement among health information networks nationally. As part of the implementation of that requirement, ONC is developing the Trusted Exchange Framework and Common Agreement (TEFCA) to help enable nationwide exchange of electronic health information across disparate health information networks. The Sequoia Project will serve as ONC’s Recognized Coordinating Entity to develop, update, implement, and maintain the Common Agreement. ONC has committed approximately $1.1 million in funding over the next two years. The Sequoia Project also supports the Patient Unified Lookup System for Emergencies, and ONC effort which can be made available in any geographic area to support health care professionals and first responders caring for displaced individuals or volunteer health care workers who are deployed to a disaster area outside of their normal health IT environment.
Effective leadership of ONC requires the National Coordinator to participate in matters where the Sequoia Project is a party. The TEFCA is a major initiative of ONC, and the Common Agreement is a critical portion of that undertaking. If Dr. Tripathi was recused from participating in official matters involving the Sequoia Project as a party, he would not be able to review the organization’s performance under the common agreement or engage in any funding decisions, or coordinate other health IT work with the organization. Again, the Government would be deprived of his expertise and leadership in regards to a major function of ONC.
The literal application of the restriction to this situation also is inconsistent with the purposes of the restriction. The Sequoia Project has an agreement with ONC to serve an important function that predated Dr. Tripathi’s appointment, the organization’s level of access to ONC would not change based on his past board service. The Sequoia Project has a history of working closely with ONC; one of its first undertakings was accepting the transfer of ONC’s eHealth Exchange, a public-private health information network, for management and maintenance (currently run by the Sequoia Project’s subsidiary Healtheway, Inc.). Furthermore, the Sequoia Project operates in a transparent manner and features several government liaisons to its board of directors, hailing from multiple parts of the Federal Government.
Conclusion
For the reasons stated above, I have determined that it is in the public interest to grant a waiver of the Paragraph 2 of the Ethics Pledge to Dr. Tripathi so he may participate in official matters where either HL7 or the Sequoia Project is a party, or represents a party. This waiver is limited. It does not apply to any entity covered by Paragraph 2 of the Ethics Pledge other than HL7 or the Sequoia Project. It does not remove Dr. Tripathi’s obligation to follow any other provision of the Ethics Pledge or any other ethics law, rule, or regulation.1
CC: Dana A. Remus, Counsel to the President, Office of the White House Counsel
- 1. It is important to note that Dr. Tripathi does not have any financial interests, imputed or otherwise, in HL7 or the Sequoia Project. Therefore, Dr. Tripathi does not require a waiver of the criminal conflict of interest law at 18 U.S.C. § 208. Dr. Tripathi will separately seek a limited authorization of certain provisions of 5 C.F.R. § 2635.502(b), as applied to his past service with the organizations, which would otherwise impose similar restrictions as the Ethics Pledge on his ability to participate in official matters where either entity is a party or represents a party.
