Federal Rule Waivers Allowed During H1N1 Flu Pandemic

As a result of the public health emergency declared Oct. 23 by President Obama, hospitals and health providers may ask the Health and Human Services department to waive certain provisions required under federal health programs, including Medicare, Medicaid, the Children's Health Insurance Program, the Health Insurance Portability and Accountability Act (HIPAA), and the Emergency Medical Treatment and Labor Act (EMTALA).

The declaration—issued in response to the novel influenza A(H1N1) pandemic—allowed HHS Secretary Kathleen Sebelius to authorize what are called section 1135 waivers. Normally, the waivers allow a limited-time suspension of certain federal health program requirements. These waivers usually are granted in a specific geographic area, often during a time of natural disaster such as a hurricane. Under the 2009 H1N1 emergency, the waivers are being granted nationwide and will be in effect for the duration of the pandemic.

To better care for patients during the pandemic, hospitals and health providers may ask HHS to waive requirements in five areas:

▸ Conditions and requirements of participation, certification requirements, and preapproval requirements.

▸ Sanctions against relocations and transfers under EMTALA.

▸ Sanctions related to self-referrals.

▸ Deadlines for performance of required activities, including billing and administrative activities.

▸ Sanctions arising from noncompliance with certain HIPAA rules.

Demand for waivers has been relatively low, according to Jean Sheil, pandemic coordinator at the Centers for Medicare and Medicaid Services. As of early November, 73 waivers had been submitted. Of those, 5 were approved and 64 withdrawn, said David Wright, an HHS official coordinating the waiver process.

Most of the withdrawals came after discussions with the CMS confirmed that the facilities or physicians did not need the waiver, he said.

Providers may be wary of applying out of concern that it may take too long to get an answer. Waiver requests are expedited, however; the five approved waivers were all completed in about 24 hours, according to Mr. Wright.

More information can be found at www.cms.hhs.gov/H1N1