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Following President Joseph R. Biden’s declaration of an emergency in the State of Texas, Norris Cochran, Acting Secretary of the Department of Health and Human Services, declared a public health emergency due to the consequences of the winter storm in the state of Texas.
Pursuant to Section 1135(b)(7) of the Social Security Act, the HHS Secretary announced a limited waiver of sanctions and penalties arising from noncompliance with certain provisions of the HIPAA Privacy Rule.
For the period of the waiver, sanctions and penalties will not be imposed for noncompliance with the following HIPAA Privacy Rule requirements:
- The requirement to obtain a patient’s agreement to speak with family members of friends – 45 C.F.R. § 164.510(a);
- The requirement to honor a patient’s request to opt out of the facility directory – 45 C.F.R. § 164.510(b);
- The requirement to distribute a notice of privacy practices – 45 C.F.R. § 164.520;
- The patient’s right to request privacy restrictions – 45 C.F.R. § 164.522(a);
- The patient’s right to request confidential communications – 45 C.F.R. § 164.522(b).
The waiver will become effective on February 19, 2021 and will be retroactive to February 11, 2021.
The waiver only covers hospitals in the geographic areas covered by the public health emergency, and only for hospitals that implemented their disaster protocols during the time that the waiver is in effect. The waiver lasts for up to 72 hours from the time a hospital implements its disaster protocol.
When either the Presidential or Secretarial declaration terminates, hospitals must then comply with the above requirements of the HIPAA Privacy Rule or face sanctions and penalties. That applies to patients still under the care of the hospital, even if the 72-hour time period has not elapsed.
Further information on the HIPAA waiver and HIPAA Privacy and Disclosures in Emergency situations can be found in the HHS HIPAA Bulletin – https://www.hhs.gov/sites/default/files/2021-texas-winter-storm-hipaa-bulletin.pdf