In an effort to proactively address the ongoing pandemic, the President signed a National Emergency Declaration on H1N1 that allows healthcare systems to quickly implement disaster plans should they become overwhelmed.
As experts expected, H1N1 flu is moving rapidly throughout the country and the majority of states now have widespread influenza activity. This declaration gives authority for the Department of Health and Human Services (HHS) to waive certain regulatory requirements for healthcare facilities in response the ongoing pandemic. Specifically, healthcare facilities will be able to submit waivers to establish alternate care sites, and modified patient triage protocols, patient transfer procedures and other actions that occur when they fully implement disaster operations plans.
Under Section 1135 of the Social Security Act [42 USC §1320b–5] healthcare facilities may petition for HHS approval of waivers in response to particular needs within the geographic and temporal limits of the emergency declarations. Before HHS has the authority to approve such “1135 Waivers” two conditions must be met: first, the Secretary must have declared a Public Health Emergency, and second, the President must have declared a National Emergency either through a Stafford Act Declaration or National Emergencies Act Declaration. 1135 Waivers still require specific requests be submitted to HHS and processed, and some State laws may need to be addressed as well.
The Secretary may tailor authorities granted under Section 1135 waivers to match the specific situational needs, but the requirements that may be waived include those related to Medicare, Medicaid or the Children’s Health Insurance Program (CHIP), the Emergency Medical Treatment and Active Labor Act (EMTALA), and the Health Insurance Portability and Accountability Act (HIPAA).
Past instances where authority to grant Section 1135 waivers was enabled include: