Health plans and insurers, health care providers and other Southern California organizations impacted by the California fires may qualify for temporary waivers or modification of certain Department of Health and Human Services (“HHS”) regulatory requirements 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 plans and other 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 plans, health care providers, business associates and other HHS-regulated entities and providers not currently impacted by today’s or another public health emergency declaration should use this guidance to plan and adopt policies and arrangements in advance of a disaster to provide for their continued ability to fulfill HHS regulatory obligations in the event of an emergency.

Health plans and other HHS-regulated entities 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 in 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 plans and other HHS regulated entities typically face a myriad of responsibilities beyond those imposed by the HHS. Health plans and other regulated entities should check other agencies disaster declaration webpages to determine whether the agency has issued any specific relief impacting their emergency in response to the broader disaster declaration issued by the Administration. Except to the extent covered by other declared disaster relief, coverage by or compliance with the HHS PHE guidance and policies does not insulate the health plan from potential liability for violating the requirements of the Employee Retirement Income Security Act or other laws creating responsibilities to plan members, providers, the Employee Benefit Security Administration or other agencies or parties other than HHS with respect to the HHS regulatory obligations for which the specific relief is provided in the PHE declaration. Accordingly, health plans, their fiduciaries, plan sponsors and service providers are urged to take necessary steps before, during and after any disaster to position themselves to demonstrate fulfillment of duties of prudence and other applicable responsibilities.

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.

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

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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