October 26, 2009

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President Obama Declares Swine Flu an Emergency under NEA

President Obama this past week declared the swine flu outbreak a national emergency under the National Emergency Act, allowing hospitals to apply for section 1135 waivers from HHS.  Receiving such a waiver allows health care facilities to utilize alternative care sites, modify patient triage protocols, patient transfer procedures and other actions that may be necessary when disaster operations plans are implemented.  Maine CDC Director Dora Mills, M.D., MPH noted that the President's Proclamation does not appear to change anything in the way the State of Maine is proceeding at this point in time in dealing with the epidemic.

A National Emergency Act declaration fulfills the second of the two conditions acquired for the Secretary of HHS to be able to grant 1135 waivers.  If requested, and HHS grants such a waiver, health care facilities will be able to utilize alternate care sites, modify patient triage protocols, patient transfer procedures and take other actions that may need to occur when they fully implement disaster operations plan. EMTALA regulations and policies are one area that can be changed if a waiver is granted.

The declaration came as thousands of people sought vaccinations and as federal officials acknowledged that the national vaccination program was getting off to a slow start because of delays in the availability of the vaccine.  Nationally, 16 million doses of the vaccine are available now and about 30 million doses are expected by the end of October.  Flu activity is now widespread in 46 states, including Maine, and it is likely that the H1N1 virus has killed more than 1,000 Americans and resulted in the hospitalization of over 20,000. 

  • Waivers are permitted only to the extent they ensure that sufficient health care items and services are available to meet the needs of Medicare, Medicaid, and CHIP beneficiaries in the emergency area during the emergency period.  The “emergency area” and the “emergency period” are the geographic area, in which, and the time period, during which, the dual declarations exist. 
  • Permitted actions include the waiver or modification of conditions of participation, other certification requirements, program participation requirements, pre-approval requirements for health care providers; waiver of sanctions for certain directions or relocations and transfers that otherwise would violate the Emergency Medical Treatment and Labor Act (EMTALA); waiver of sanctions related to Stark self-referral prohibitions; modifications to deadlines and timetables for the performance of required activities; and waiver of sanctions and penalties arising from noncompliance with certain Health Insurance Portability and Accountability Act (HIPAA) privacy regulations.

Examples of use of waivers:

  • Hospitals request to set up an alternative screening location for patients away from the hospital’s main campus (requiring waiver of the Emergency Medical Treatment and Labor Act-EMTALA)
  • Hospitals request to facilitate transfer of patients between ERs and inpatient wards between hospitals (requiring waiver of both EMTALA and HIPAA regulations)
  • Critical Access Hospitals requesting waiver of 42 CFR 485.620, which requires a 25-bed limit and average patient stays less than 96 hours
  • Skilled Nursing Facilities requesting a waiver of 42 CFR 483.5, which requires CMS approval prior to increasing the number of certified beds in a distinct part

Past instances where authority to grant Section 1135 waivers was enabled for recent disaster events include:

  • Hurricane Katrina (2005)
  • 56th Presidential Inauguration (2009)
  • Hurricanes Ike and Gustav (2008)
  • North Dakota flooding (2009)

Q:  Why do this now; why can’t we wait until a hospital or region needs these 1135 Waivers?
A:  The H1N1 epidemic is moving rapidly.  By the time regions or healthcare systems recognize they are becoming overburdened, they need to implement disaster plans quickly.  1135 Waivers still require specific requests be submitted to HHS and processed, and some State laws may need to be addressed as well.  Adding a potential delay while waiting for a National Emergency Declaration is not in the best interest of the public, particularly if this step can be done proactively as the President has done today. 

Q:  Has the authority to grant 1135 waivers been granted before?
A:  Yes, there are several instances where 1135 Waiver authority has been granted under the Stafford Disaster Relief and Emergency Assistance Act (vice National Emergencies Act) to help healthcare facilities cope with large patient burdens.  Recent examples include Hurricane Katrina (2005), Hurricanes Ike and Gustav (2008), and the North Dakota flooding (2009).  In addition, 1135 waiver authority has been granted previously as a precautionary measure, as in the case of the recent 56th Presidential Inauguration (2009).

Q:  Specifically, what will this NEA Declaration enable and what will this allow hospitals to do, if a waiver is requested and granted?
A:  An NEA Declaration fulfills the second of the two conditions required for the Secretary of HHS to be able to grant 1135 waivers.  If requested, and HHS grants an 1135 waiver, healthcare facilities will be able to utilize alternate care sites, modified patient triage protocols, patient transfer procedures, and other actions that occur when they fully implement disaster operations plans.

Q:  Is the HIPAA Privacy Rule suspended during a national or public health emergency?
A (from the HHS Office of Civil Rights website):  No; however, the Secretary of HHS may waive certain provisions of the Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act.

What provisions may be waived

If the President declares an emergency or disaster and the Secretary declares a public health emergency, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with certain provisions of the HIPAA Privacy Rule:

  1. the requirements to obtain a patient's agreement to speak with family members or friends involved in the patient’s care (45 CFR 164.510(b))
  2. the requirement to honor a request to opt out of the facility directory (45 CFR 164.510(a))
  3. the requirement to distribute a notice of privacy practices (45 CFR 164.520)
  4. the patient's right to request privacy restrictions (45 CFR 164.522(a))
  5. the patient's right to request confidential communications (45 CFR 164.522(b))

When and to what entities does the waiver apply

If the Secretary issues such a waiver, it only applies:

  1. In the emergency area and for the emergency period identified in the public health emergency declaration.
  2. To hospitals that have instituted a disaster protocol.  The waiver would apply to all patients at such hospitals.
  3. For up to 72 hours from the time the hospital implements its disaster protocol.

When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol. 

Regardless of the activation of an emergency waiver, the HIPAA Privacy Rule permits disclosures for treatment purposes and certain disclosures to disaster relief organizations. For instance, the Privacy Rule allows covered entities to share patient information with the American Red Cross so it can notify family members of the patient’s location.  See 45 CFR 164.510(b)(4).

Learn More:  * See http://www.hhs.gov/ocr/hipaa/KATRINAnHIPAA.pdf for information on sharing information in emergency situations.

U.S. Senate Fails for Fix Flawed Medicare Payment Formula

In a critically important vote impacting physicians, the United States Senate this past week failed to pass legislation introduced by Michigan Senator Deborah Stabenow which would have effectively repealed the flawed sustainable growth rate (SGR) payment formula which is responsible for annual reductions in Medicare payments to physicians.  Because of the cost of the 10-year fix (over $240 billion) and the bill's failure to either raise revenue or to find offsets to pay for it, all the Republicans and several Democrats opposed the bill which received only 47 votes and needed 60 votes to proceed.

Both Maine Senators, Olympia Snowe and Susan Collins, voted against the bill, citing its impact on the already growing federal deficit.  Both Senators have stated their support in the past for fixing the SGR formula, but insist that it be done in a budget-neutral way.

It is now likely that a one or two-year fix will be included in any successful health care reform proposal.  This same approach has been used previously to restore steep reductions, but these temporary solutions have resulted in ever deeper reductions in future years.  The MMA will continue to work with the AMA and other medical societies toward a permanent repeal of the formula. [return to top]

MMA Staff Participating on Panel for Harvard Pilgrim Foundation, November 5, Boston Museum of Science

MMA staff will address the role of public policy in building a movement for healthy communities.  MMA will focus on Maine’s Healthy Weight Initiatives passed by the legislature this past session to assist many of Harvard Pilgrim’s grantees who are not yet engaged in public policy efforts in their community work.

Panelists include:
John Auerbach, Commissioner of Public Health, Massachusetts Department of Public Health
Nancy Stiles, NH State Representative
Kellie Miller, Director of Public Health Policy, Maine Medical Association
Rob Bisceglie, Executive Director, Action for Healthy Kids

 The panel facilitator is Stephanie Pollack, Professor of Practice in Law, Policy and Society
and Associate Director of the Kitty and Michael Dukakis Center for Urban and Regional Policy at
Northeastern University.  As a Smart Growth expert, she knows the importance of public policy in
creating livable and walkable communities. [return to top]

AthenaHealth Offers Federal Stimulus Bonus Payment Guarantee Program Seminar

From MMA Corporate Affiliate athenahealth:


There is a significant amount of stimulus money being offered by the government to physicians over the next few years. We are so convinced that we can help you get these government stimulus payments that we guarantee it and we are putting our own money on the line.* 


Join us on Thursday, October 29th at 12:15 PM ET for a live Webinar to find the answers to some of your most pressing questions.


Both clients and non-clients can benefit from this 45 minute overview of the 2009 HITECH Act, and athenahealth’s Federal Stimulus Payment Guarantee. Some of the topics we’ll cover include:


·         What is the HITECH Act of 2009?

·         How is “meaningful use” of an EHR defined?

·         How can athenahealth guarantee their clients will receive stimulus payments?


Please join us for this presentation, and bring your own questions as we’ve set aside a lot of time for Q&A. Register today!  http://event.on24.com/r.htm?e=169989&s=1&k=EEC44982712F438D986F81961FB7A31A&partnerref=mma.  

[return to top]

MIHMS Provider Forum, Thursday, October 29

MIHMS Provider Forum will be Thursday, October 29th from 1:00p to 3:00p in the afternoon.  The meeting location will be Florian Hall at the Central Maine Commerce Center in Augusta.

The agenda for this meeting includes a project update, an overview of member classification, a review of how Direct Data Entry and the Prior Authorization Process will work in MIHMS, and there will also be a final update on the cross walk of local codes project.  If you would like to review the local codes crosswalk that pertains to your section of policy, they can be found at the following link:  http://www.maine.gov/dhhs/oms/providerfiles/billing_instructions.html#hipaa_codes.

If you wish to join this meeting remotely, you will need to open the link here to see the Presentation and also call the conference line below to hear the Presentation.

1.      Copy this address and paste it into your web browser: 

2.      Copy and paste the required information: 
Meeting ID: 48QB78 
Entry Code: pC!q4%M 
Location: https://www.livemeeting.com/cc/unisys

Conference Call:

1-800-394-6604, code 934057

The call will be opened at 12:45.

[return to top]

MMA First Fridays November 6: Supervising and Delegating

Can my unlicensed MA give flu shots? Can she complete a patient history? What legal responsibility do I hold for my physician assistant?

These are some of the many questions MMA staff regularly receive from members across the state. On November 6, MMA will present a three-hour program focusing on the laws and regulations in Maine impacting on physician supervision and delegation, which have become confusing to many practices.

      • 8:30am Continental breakfast and networking
      • 9:00       Introductions and overview Gordon Smith, Esq.
      • 9:45       View from the Board of Licensure in Medicine Sheri Oldham, MD, Chair
      • 10:15     Break
      • 10:30     Managing the Risks of Supervision and Delegation Cheryl L. Peaslee, RN, MBA, CPHQ
      • 11:15     Physician Assistant Plans of Supervision  Erich Fogg, PA-C 
      • 11:30     Frequently Asked Questions Andrew MacLean, Esq.
      • 11:45     Panel Discussion, Q & A

Register today at www.mainemed.com. [return to top]

Public Health Committee Meeting Highlights from Wednesday, October 21

The Maine Medical Association's Public Health Committee met this past Wednesday, October 21st, under the direction of Chair, Dr. Norma Dreyfus.  Dr. Hugh Tilson presented on Sagadahoc's long-range plan to improve their county's public health infrastructure, as an example of what physician involvement can do in each of the state's 8 Public Health Districts and counties.  He presented, "Launching the SHIP (The Sagadahoc Health Improvement Project), which began in December 2004, along with an overview of the Sagadahoc County Board of Health's strategies to strengthen their county's public health infrastructure using the Essential Services of Public Health as their Guide.  His slides are available for download on the MMA website under the Public Health Committee meeting information at www.mainemed.com .

Dr Dreyfus presented the 2010 public health priorities for discussion by the members and all members in attendance agreed and are as follows:

  1. Environmental Toxins
  2. Immunization Financing
  3. Strengthening our Public Health Infrastructure
  4. Climate Change and Adaptation

The next meeting of the public health committee is scheduled for December 9th, 4-6pm at the Maine Medical Association office and will focus on an overview of Environmental Toxins, an update on legislation including TSCA reform, Hazardous Chemicals in HealthCare, as well as a presentation on the Pediatric Environmental Toolkit for use in clinicians offices.  All members are welcome to attend.  For more information, contact MMA Staff, Kellie Miller, Director of Public Health Policy at 207-622-3374, ext. 229 or kmiller@mainemed.com [return to top]

For more information or to contact us directly, please visit www.mainemed.com l ©2003, Maine Medical Association