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As Hurricane Florence was making landfall, Department of Health and Human Services Secretary Alex Azar issued HIPAA guidance that outlined when hospitals in declared state of emergency areas can qualify for a waiver of certain provisions of the HIPAA Privacy Rule, including fines and penalties.

According to the guidance, “the HIPAA Privacy Rule allows patient information to be shared to assist in disaster relief efforts, and to assist patients in receiving the care they need….while the HIPAA Privacy Rule is not suspended during a public health or other emergency, the Secretary of HHS may waive certain provisions of the Privacy Rule under the Project Bioshield Act of 2004…and section 1145(b) of the Social Security Act.”

The Secretary declared a public health emergency in North Carolina, South Carolina and Virginia as a result of Hurricane Florence and has “waived sanctions and penalties against a covered hospital that does not comply with the following provisions of the HIPAA Privacy Rule:

  • the requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care. See 45 CFR 164.510(b).
  • the requirement to honor a request to opt out of the facility directory. See 45 CFR 164.510(a).
  • the requirement to distribute a notice of privacy practices. See 45 CFR 164.520.
  • the patient’s right to request privacy restrictions. See 45 CFR 164.522(a).
  • the patient’s right to request confidential communications. See 45 CFR 164.522(b).”

The waiver “only applies:

  • in the emergency area and for the emergency period identified in the public health emergency declaration.
  • to hospitals that have instituted a disaster protocol.
  • for up to 72 hours from the time the hospital implements its disaster protocol.

When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol.”

The guidance reminds covered entities and business associates that “in an emergency situation, covered entities must continue to implement reasonable safeguards to protect patient information against intentional or unintentional impermissible uses and disclosures. Further, covered entities (and their business associates) must apply the administrative, physical, and technical safeguards of the HIPAA Security Rule to electronic protected health information.”

 

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Photo of Linn Foster Freedman Linn Foster Freedman

Linn Freedman is chair of the firm’s Data Privacy + Security Team. She is also an active member of firm’s Health Law Group, education practice, Environmental + Utilities Group, Insurance + Reinsurance Group, and Business Litigation Group. Her practice focuses on data privacy and security law, responses to data breaches, compliance with federal and state privacy and security laws, breach notification laws, and assisting clients with regulatory investigations.

Ms. Freedman is experienced in providing counsel to health care organizations, Regional Health Information Organizations, and privacy and security issues related to interoperability of electronic health records. She has litigated complex cases, including privacy cases, and class action data breach litigation in state, federal, and appellate courts, government investigations, and serves as general counsel of the Rhode Island Quality Institute. Read her full rc.com bio here.