Health care providers, health plans and insurers, child care facilities, schools and other Southern California organizations impacted by the California fires that are regulated by the Department of Health and Human Services (“HHS”) may qualify for temporary waivers or modification of certain HHS regulatory obligations under the Declarations of a Public Health Emergency (“PHE”) published by HHS today.
The relief provided by the PHE includes:
- Waiver or Modification of Requirements under Section 1135 of the Social Security Act; and
- Limited Waiver of HIPAA Sanctions and Penalties as a Result of Emergency Conditions in the State of California.
An extensive list of resources and guidance to help health plans, health care providers and others to understand and cope with HHS requirements in disaster or other emergency situations such as:
- For information about how the HIPAA Privacy Rule applies in a public health emergency, visit the OCR’S HIPAA Emergency Preparedness, Planning, and Response page (www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html) or you may use the HIPAA Disclosures for Emergency Preparedness Decision Tool (www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/decision-tool-overview/index.html).
- For information and resources for emergency responders/officials to help ensure individuals have equal access to emergency services, including language access and effective communication, please see this checklist for emergency responders: HHS OCR Emergency Preparedness Checklist for Ensuring Language Access and Effective Communication (www.hhs.gov/sites/default/files/lang-access-and-effective-comm-checklist-for-emergency-responders.pdf).
- For information about emergency requirements for long-term care facilities, visit the CMS Emergency Preparedness Rule page (www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Emergency-Prep-Rule.html)
Health care providers and other HHS regulated entities impacted by the fire or other disasters should carefully review this guidance to understand the scope and availability of the current relief. Additionally, health care providers, health plans, health care providers, business associates and other HHS-regulated entities not currently impacted by today’s or another public health emergency declaration should keep in mind that they likely are subject to HHS and other regulatory, statutory, common law, or ethical obligations to make advance arrangements to prepare in advance to deal with responsibilities during a disaster. Accordingly, providers and others not currently affected by the current disaster should heed the reminder from the disaster to reconfirm before they are impacted by a disaster the adequacy of their own policies, plans and arrangements to provide for their continued ability to fulfill HHS regulatory and other obligations in the event of a disaster.
Health care providers and other HHS-regulated entities planning to rely upon the PHE relief should keep in mind the limited duration and scope of the relief provided by this PHE or any other HHS public health emergency declaration. Entities planning to rely on the PHE relief must review the scope, conditions and duration requirements and ensure their ability to defend their continued compliance taking into account these limited waivers and modifications.
Also, the PHE guidance documents are not a final agency action, do not legally bind persons or entities outside the Federal government, and may be rescinded or modified at the Department’s discretion. Noncompliance with any voluntary standards (e.g., recommended practices) contained in these documents will not, in itself, result in any enforcement action.
Furthermore, health care providers, health plans and insurers, and other HHS regulated entities typically face a myriad of responsibilities beyond those imposed by the HHS under various federal and state laws, other agency regulations, contracts, common law and ethical or other standards or rules. Consequently, providers and other HHS entities intending to rely on the HHS PHE also should check other agencies disaster declaration webpages to determine what additional relief from other agency requirements, if any, their organization may qualify as a result of the disaster. Except to the extent covered by other declared disaster relief, coverage by or compliance with the HHS PHE guidance and policies typically provide no protection against liability for failure to fulfill duties or responsibilities under these other laws, regulations or standards or beyond the specific relief granted in the HHS PHE. Accordingly, entities impacted by the fire or another disaster are urged to take necessary steps before, during and after any disaster to position themselves to demonstrate fulfillment of duties and mitigate the seriousness of any alleged deficiencies in their compliance.
The author of this update, Cynthia Marcotte Stamer is an American College of Employee Benefits Counsel Fellow and attorney board certified in Labor and Employment Law by the Texas Board of Legal Specialization, who has decades of experience advising health care providers, health plans and insurers, third party administrators, managed care and other health care payers and providers, technology, and other businesses about crisis preparedness and response and other compliance, risk management and operational matters. If you have questions or need advice or help evaluating or addressing these or other compliance, risk management, or other concerns, contact her.
For More Information
We hope this update is helpful. For more information about these or other health or other employee benefits, human resources, or health care developments, please contact the author, Cynthia Marcotte Stamer, via e-mail or telephone at (214) 452-8297.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health, insurance, employment and employee benefits and other industry management work, public policy leadership and advocacy, coaching, teachings, and publications including leading-edge work on crisis preparedness, response and recovery.
Author of many highly regarded compliance and risk management tools, training and other resources on health and other employee benefits, health care, insurance, workforce and other risk management and compliance, Ms. Stamer is widely recognized for her thought leadership and advocacy on these matters.
In addition, Ms. Stamer serves as a Scribe for the American Bar Association (“ABA”) Joint Committee on Employee Benefits annual agency meetings with OCR and shares her thought leadership as International Section Life Sciences Committee Vice Chair, and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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