In a letter dated March 25, 2020, the American Hospital Association (AHA) has requested that the U.S. Department of Health & Human Services (HHS) consider clarification for waivers relating to the Emergency Medical Treatment and Labor Act (EMTALA) and the Health Insurance Portability and Accountability Act (HIPAA). HHS recently published two waivers specific to EMTALA and HIPAA.

With regard to the EMTALA waiver, the AHA describes: “There remains significant uncertainty among hospitals and health systems whether your declaration specific to EMTALA creates protections that every hospital can automatically rely on for the duration of the emergency. We ask that you clarify that no further action by the Centers for Medicare & Medicaid Services (CMS) is needed or required to create the protections and that hospitals do not have to make individual requests or seek permission from the agency. We also ask for clarification to ensure that CMS does not have to make any individual determinations about individual hospital’s circumstances.”

The AHA further states that with respect to the HIPAA waiver the Office of Civil Rights is construing the waiver more narrowly than the section 1135 statute dictates by limiting protection to 72 hours rather than for the duration of the COVID-19 pandemic.

The AHA goes on to state: ”If [HHS] is unable to revise the waivers of the requirements of EMTALA and HIPAA, the AHA urges you to announce that the Department will exercise enforcement discretion and not take action against hospitals that fail to meet the requirements of EMTALA and HIPAA during the COVID-19 crisis. In this unprecedented moment for our country, hospitals and health systems should be able to devote full attention to their health care missions without fear of penalty.”

The AHA letter is available here.

Norton Rose Fulbright attorneys will continue to monitor legislative and regulatory actions pertinent to the COVID-19 pandemic and provide updates through the Health Law Pulse.