H1N1 is a National Emergency - What Does that Mean to Healthcare Providers?
On Saturday, October 24, 2009, the White House issued a statement that President Obama was declaring the 2009 H1N1 flu outbreak a national emergency. According to media reports, this declaration was a proactive step taken to ensure that the Secretary of Health and Human Services will be able to quickly issue “Section 1135 waivers” if and when healthcare providers need them to accommodate a high volume of H1N1 patients.
Section 1135 of the Social Security Act allows the Secretary to waive certain provisions related to Medicare, Medicaid or the Children’s Health Insurance Program (CHIP), the Emergency Medical Treatment and Active Labor Act (EMTALA), and the Health Insurance Portability and Accountability Act (HIPAA) for healthcare services rendered during an “emergency period” in an “emergency area.” To meet the definition of “emergency period” and “emergency area” there must be a presidentially declared disaster or emergency and a public health emergency declared by the Secretary of Health and Human Services. President Obama’s emergency declaration on Saturday compliments Secretary Sebelius’ public health emergency declaration for H1N1 issued on July 24, 2009 and sets the stage for the issuance of Section 1135 waivers.
Based on available information, it appears that Section 1135 waivers are expected to be requested for healthcare facilities that want to utilize alternate care sites, modified patient triage protocols, patient transfer procedures, and other actions provided for in disaster operations plans. While the exact procedures and mechanisms for requesting 1135 waivers related to H1N1 are unclear at this point, healthcare facilities should review their pandemic response plans and identify the planned actions for which they will need a Section 1135 waiver. As more information about the waiver request and issuance process becomes available, we will issue additional e-alerts so that healthcare facilities can plan accordingly.
For more H1N1 related information, please see the following links:
- Information on H1N1 Emergency Declaration from Flu.gov
- EMTALA Compliance in Disaster Circumstances
- Sharing Information During Disasters: HIPAA Implications
Troutman Sanders LLP has been actively involved in influenza pandemic preparedness planning since 2005 and has prepared a number of white papers and planning guides to assist healthcare providers preparing for emergencies and disasters, including an influenza pandemic response. To access Troutman Sanders LLP’s Pandemic Influenza Resource Center, which contains many of the tools that we have developed, please visit http://www.troutman.com/panflu. Please contact Steve Gravely or Erin Whaley for more information on how Troutman Sanders can assist with your pandemic influenza preparedness needs.