Hurricanes Harvey and Irma have led to the declaration of a public health emergency in various affected areas across the country. As healthcare providers continue to provide essential disaster response operations, CMS and HHS have provided limited regulatory relief to healthcare providers through temporary exemptions, waivers, and other actions.
Due to Hurricanes Harvey and Irma, the US Department of Health and Human Services (HHS) declared a public health emergency in Florida, Georgia, Louisiana, South Carolina, Texas, the Commonwealth of Puerto Rico, and the territory of the US Virgin Islands, and invoked certain waivers that offer immediate regulatory relief for providers under Section 1135 of the Social Security Act. Additionally, due to the devastating impact of Hurricanes Harvey and Irma, the Centers for Medicare & Medicaid Services (CMS) is granting exceptions under certain Medicare quality reporting and value-based purchasing programs to all types of acute care hospitals, skilled nursing facilities, home health agencies, hospices, renal dialysis facilities, and ambulatory surgical centers located in affected counties, municipios, and county equivalents designated by FEMA in the areas affected by Hurricanes Harvey and Irma.
Under § 1135 of the Social Security Act, the Secretary of HHS may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program requirements (e.g., conditions of participation, Emergency Medical Treatment & Labor Act (EMTALA) requirements, or Health Insurance Portability and Accountability Act (HIPAA) disclosure requirements) so that providers that furnish services in the affected areas in good faith can be reimbursed and exempted from sanctions. In order to qualify for the waiver, the provider must be located in the geographic region covered by the public health emergency and be unable to comply with regulatory requirements due to the conditions created by the emergency.
Providers should refer to these two documents for an explanation of
Below is an overview of exemptions to certain Medicare quality reporting and value-based purchasing programs for providers located in one of the Texas counties or Louisiana parishes designated by the Federal Emergency Management Agency (FEMA) as a major disaster county (see Applicability of Reporting Requirements for Facilities Affected by Hurricane Harvey for further exception applicability guidelines).
Potential subsequent future impact
Exemptions to reporting requirements under the Hospital Outpatient Quality Reporting (OQR) Program
Home Health Agencies, Hospices, Inpatient Rehabilitation Facilities, Long-Term Care Hospitals, and Skilled Nursing Facilities
Ambulatory Surgical Centers
Exemptions to reporting requirements under the Ambulatory Surgical Center Quality Reporting (ASCQR) Program
Renal Dialysis Facilities
HHS has issued guidance on HIPAA Privacy Rule and Security Rule requirements in the wake of Hurricanes Harvey and Irma. HHS released a limited waiver of sanctions and penalties against covered hospitals that do not comply with specified provisions of the HIPAA Privacy Rule. The waiver is limited (1) to the emergency area and for the emergency period identified in the public health emergency declaration, (2) to hospitals that have instituted a disaster protocol, and (3) for up to 72 hours from the time the hospital implements its disaster protocol.
The limited waiver covers the following provisions of the HIPAA Privacy Rule:
Once the declaration terminates, healthcare providers must comply with all requirements of the Privacy Rule.
For more information from CMS on the scope of the § 1135 waivers that apply in Texas, Louisiana, and Florida, as well as other administrative actions in response to Hurricanes Harvey and Irma, please visit Hurricanes: Centers for Medicare and Medicaid Services (CMS)
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
 These waivers and modifications became effective in Florida on September 9, 2017, in Texas on August 25, 2017, in Louisiana on August 27, 2017, and in the Commonwealth of Puerto Rico and the territory of the US Virgin Islands on September 5, 2017.