HIPAA and Coronavirus 2—HHS Limited Waiver: HIPAA & HITECH Act Blog by Jonathan P. Tomes

Jon Tomes

As a followup to my March 2, 2020, blog post, HIPAA and Coronavirus (and certainly not in reaction to it), the U.S. Department of Health and Human Services (“HHS”) has issued a limited HIPAA waiver during the Coronavirus emergency. The limited waiver applies only in areas covered by the public health emergency, only for hospitals that have implemented their disaster protocol, and only for a period of 72 hours from the time that the disaster protocol is implemented. When either the Presidential or Secretarial declaration terminates, hospitals must then comply with Privacy Rule requirements for patients still under their care, even if 72 hours have not elapsed.

The waiver applies to the following HIPAA provisions:

  • The requirement to provide an opportunity to object to communications with family members or friends involved in the patient’s care. 45 C.F.R. § 164.510(b).
  • The requirement to honor a request to opt out of the facility directory. 45 F.R. § 164.510(a).
  • The requirement to distribute a notice of privacy practices. 45 F.R. § 164.520.
  • The patient’s right to request privacy restrictions. 45 F.R. § 164.522(a).
  • The patient’s right to request alternate communications. 45 F.R. § 164.522(b).

The HHS Office for Civil Rights (“OCR”) issued a bulletin covering permissible uses and disclosures of PHI in the Novel Coronavirus emergency. You may find it at https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf.

Alice here: Yes, once again, I am here to try to sell things to keep you and us in business. Surely, after having read Jon’s blog items all these years, you recognize that you must keep your risk analysis up to date. Make sure that you include malware and ransomware in your initial risk analysis and all updates thereof. If you need help with your risk analysis, either initially or for an update, Jon Tomes has written a Risk Analysis ToolKit to provide the structure and tools to help you complete the requirement under HIPAA. You and your risk analysis team can fill it out and document your decisions as to what is reasonable and appropriate for you to adopt in the way of policies and procedures and be done with it. Or you could send your completed risk analysis to Jon to review and render his professional opinion as the country’s leading HIPAA expert (IMHO) as to whether it is sufficient to keep you from getting that free trip to Leavenworth or that very expensive trip to the bank. We may ot be able to save you from the Coronavirus, but we can help you stay out of jail and the bank. If you have Jon’s Compliance Guide to HIPAA and the DHHS Regulations, 6th edition, with the accompanying HIPAA Documents Resources Center CD, also 6th edition, you can find the Risk Analysis ToolKit on the CD. It is also available with a review by Jon at https://www.veteranspress.com/product/hipaa-risk-analysis-toolkit. Also, Jon Tomes presented a webinar recently on “How to Do a HIPAA and HITECH Risk Analysis.” You can buy a recording of it at https://www.complianceiq.com/trainings/LiveWebinar/2255/how-to-do-a-hipaa-and-hitech-risk-analysis. Jon is also writing a Risk Analysis Update ToolKit, which will be available for you in the near future on the Premium Member section of our website. Please stay tuned for our announcement when it is up and running for you there. Also, include in your risk analysis the lack of a business associate agreement if you are considering hiring a business associate or a downstream business associate.

If you need guidance on how to draft the policies and procedures that your risk analysis or your newly updated risk analysis has shown are reasonable and appropriate for your organization, Jon has also written The Complete HIPAA Policies and Procedures Guide, with the accompanying CD of several dozen HIPAA policies and procedures templates for you to adapt to your situation, including a release of information policy and a right of access policy. That book also contains a chapter by me on how to write in general, but more specifically on how to write a good policy.

Make sure that you train your entire workforce on HIPAA in general and on the HIPAA policies and procedures according to who needs to know what to perform their duties for you. If you need handy HIPAA training in general, consider Jon’s training video and training manual in either of two forms available here: https://www.veteranspress.com/product/basic-hipaa-training-video-dvd-workbook or https://www.veteranspress.com/product/online-hipaa-training-video-certification. Or you could hire Jon to present HIPAA training onsite to your workforce. Just contact him at jon@veteranspress.com or 816-527-3858. Please make sure that you train your troops on the new Coronavirus HIPAA waivers noted above.

Keep your written documentation of all of these HIPAA compliance efforts where you can find them easily and quickly, after restarting your heart, if HHS shows up demanding your HIPAA compliance documentation. We recommend keeping all of it in Jon’s Your Happy HIPAA Book. Jon included tabs in the three-ring binder for everything that you need to document and a checklist for each tab. I recommend adding the date that you check off each item in each checklist, as one of our clients suggested to us.

If you have had a security incident that you were unsure as to what exactly to do about, or if you are concerned that you may have one, consider reading Jon’s book How to Handle HIPAA and HITECH Act Breaches, Complaints, and Investigations: Everything You Need to Know.

A sample business associate agreement policy and a sample business associate agreement are posted in the Premium Member section of our website at www.veteranspress.com.

As always, thanks for reading Jon’s blog, buying his books and other HIPAA compliance tools, attending our seminars and webinars, and hiring Jon for HIPAA consulting and training. We wish you every success with your HIPAA compliance efforts. Please avoid the Coronavirus with or without the HIPAA implications. We need you on the planet just the way you are to do the work that you do. Thank you.


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