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 practices in data privacy and security law, and complex litigation. She is a member of the Business Litigation Group and chair’s the firm’s Data Privacy and Security Team. She currently serves as general counsel to the Rhode Island Quality Institute. Linn focuses her practice on compliance with all state and federal privacy and security laws and regulations, as well as emergency data breach response and mitigation. She counsels clients on state and federal data privacy and security investigations and data breaches. Prior to joining the firm, Linn was a partner at Nixon Peabody, where she served as leader of the firm’s Privacy & Data Protection Group. She also served as assistant attorney general and deputy chief of the Civil Division of the Attorney General’s Office for the State of Rhode Island. She earned her J.D. from Loyola University School of Law and her B.A., with honors, in American Studies from Newcomb College of Tulane University. She is admitted to practice law in Massachusetts and Rhode Island. Read her full rc.com bio here.