ABA Health eSource
 December 2005 Volume 2 Number 4

Access to Care Issues Consumers Continue to Face as a Result of Katrina
by Priscilla D. Keith, General Counsel, Health & Hospital Corporation of Marion County, Indianapolis, IN

Priscilla D. KeithHurricane Katrina was one of the deadliest hurricanes in the nation’s history. It not only caused widespread devastation but also resulted in the largest migration or displacement of people since reconstruction. Many lost their homes, jobs and connection to family. Food, shelter, and access to healthcare were critical during the immediate aftermath of the hurricane and continue to be for thousands of displaced citizens.

Access to Care

Secretary of Health and Human Services (“HHS”) Michael O. Levitt took a series of statutory steps to facilitate access to healthcare for displaced citizens. On August 31, 2005, he declared a public health emergency pursuant to Section 319 of the Public Health Service Act. 1 This Act would allow HHS to effectively deal with the devastation caused by Hurricane Katrina as well as enable all states, particularly those affected by Hurricane Katrina to respond with all of their resources to address the issues arising out of the natural disaster.

Section 1135(b) of the Social Security Act provides the Secretary of HHS with the ability to waive or modify the application requirements of Medicare, Medicaid and State Children’s Health Insurance Program (“SCHIP”) to address the emergency needs of those governmental programs. 2 On September 29, 2005, Secretary Levitt executed a waiver of specific requirements applicable to providers under Medicare, Medicaid, and SCHIP. The waiver was effective September 29, 2005, and became retroactive for Texas, Florida, Alabama, Louisiana, and Mississippi. 3

The waiver extends beyond states damaged by the hurricane to include states and other jurisdictions to which people have been evacuated. The waiver is valid to the extent necessary to provide medical services. The 1135(b) waiver assures healthcare providers that they can furnish items and services to covered persons in good faith, and be reimbursed for such items and services, even if they cannot comply with all of the applicable laws. The waiver exempts a provider from sanctions and penalties for noncompliance (absent any fraud and abuse) for the following: Emergency Medical Treatment and Active Labor Act (EMTALA) 4 , Health Insurance Portability and Accountability Act of 1996 (HIPAA) 5 , and licensure requirements for physicians and other healthcare professionals. It also waived any limitations on payment to an out-of county network provider under the Medicare Advantage program.

In addition to the Section 1135(b) waiver, the Section 1115 demonstration initiative provides that states are able to provide Medicaid and SCHIP coverage to evacuees who have been displaced by Katrina. It also provides the establishment of expedited Medicaid and SCHIP eligibility for new applicants who undoubtedly would meet certain income eligibility standards. States are able to provide temporary eligibility for up to five (5) months.

States are also allowed to reimburse healthcare providers who incur uncompensated care costs for medically necessary services and supplies for evacuees who do not have coverage through insurance and other relief options, including Title XIX and Title XXI for a five (5) month period effective August 24, 2005 through January 31, 2006. The program can be extended for 60 days at the discretion of Secretary Levitt.

CMS has issued a “FACT SHEET” which assures local health providers and beneficiaries that normal operating procedures will be relaxed to facilitate healthcare services to the elderly, children and persons with disabilities who depend on these programs. The FACT SHEET provides some the following:

  • CMS will work with state Medicaid agencies to coordinate the resolution of interstate payment agreements for recipients who are served outside their home states.
  • Healthcare providers that furnish medical services in good faith but who cannot comply with normal program requirements because of Hurricane Katrina will be paid for services provided and will be exempt from sanctions for noncompliance, unless it is discovered that fraud or abuse occurred.
  • Crisis services provided to Medicare and Medicaid patients who have been transferred to facilities not certified to participate in the programs would be paid. 6

The complete FACT SHEET can be found at http://www.cms.hhs.gov/katrina.

Access to healthcare includes not only access to medical treatment for a current illness but also includes preventative care such as immunization. Many of the evacuees are displaced school-aged children who currently are or will have to attend a new school in a different city and state. All states require children entering school to provide an immunization record. This will be difficult because most of the displaced children do not have the required documentation or access to the documentation. To address the documentation issue, some states have temporarily waived this requirement in order to get the children enrolled in school.

In addition to the lack of records, many parents face the daunting task of trying to pay for the immunizations. In terms of cost, Secretary Levitt announced on September 16 that all children from birth to 18 who have been displaced by Hurricane Katrina to be effectively uninsured, mainly because they do not have access to medical records or proof of insurance. Therefore, all children in this age group are eligible to receive free vaccines through the federally run Vaccines for Children program (VFC), regardless of whether they are staying at shelters, hotels, or with family and friends, and regardless of previous health insurance.

Because of the destruction of medical records, the CDC has issued immunization guidelines for individuals displaced by Hurricane Katrina. It can be accessed at http://www.bt.cdc.gov/disasters/hurricanes/katrina/vaccredisplaced.asp.

Immunization Issues

Some parents may not allow their children to be immunized because of health, conscience or religious reasons. Most states provide for an exemption on medical grounds as long as a licensed physician certifies the medical reason. All states, with the exception of West Virginia, grant religious exemptions for persons who oppose vaccination on religious grounds. 7 Many states require mandatory immunizations during a public health emergency or communicable disease outbreak. The exemption for medical reasons may hold; but the person may be quarantined during the public health emergency.

Use of Quarantine

Quarantine is defined as the “restriction of movement of a healthy person who has been exposed to a communicable disease in order to prevent contact with an unexposed person.” The primary authority to quarantine a person or groups of persons usually rest with each state and local health department. 8 The federal government’s ability to quarantine is limited to interstate and foreign quarantine. 9 Moreover, the federal government cannot supersede state law unless state law is in conflict with federal law.

During a time of natural disaster such as Hurricane Katrina, many people stay in unsanitary, crowded conditions that would increase the likelihood of outbreak of communicable diseases. When this has occurred in times past, the answer has routinely been to quarantine the person or groups of persons who may be responsible for the spread of the illness or disease.

State laws vary in terms of authority to pass and enforce quarantine laws. Some states may require a public health order, while other states may require a court order before an individual is isolated or quarantined. Therefore, some states look to the Model State Emergency Powers Act to provide guidance for isolation and quarantine. 10 That Model Act provides that quarantine should occur under two sets of circumstances. The first one is under an emergency basis. Under this occurrence, a person may be isolated without public notice if delay would significantly jeopardize the public health’s ability to prevent or limit a highly contagious disease. It must be ordered through a written directive, specific to the individual subject to the order, premises subject to the order, date and time isolation or quarantine is to begin, the suspected contagious disease, and a copy of provisions set forth in the act relating to the quarantine. The public health authority is required to petition within ten days after issuing the directive for a court order authorizing the continued isolation or quarantine if needed. 11

The second scenario involves a non-emergency situation. In this case, the public health officer may petition the court for an order authorizing the isolation or quarantine with notice to the identified person or groups within 24 hours. Due process requires a hearing within five (5) days of notice and the burden of proof is by a preponderance of evidence. The stay can be for 30 days with an additional 30 days if warranted. 12

A court usually gives deference to the state or local authority, unless the state is unable to meet its burden of proof.

This summary details some of the measures established by the government to address the access to care issues following Katrina. The issues will continue to unfold as providers and citizens grapple with the prospect that medical care as they once knew, it no longer exists. As the access to care issue continues to unfold, the question becomes more urgent as the deadline for reimbursement to providers ends, and for victims to become enrolled either in Medicaid, Medicare or SCHIP.

1 42 U.S.C. Section 247(d). See www.cms.hhs.gov/emergency/determination.
2 42 U.S.C. 1320b-5.
3 The effective period of these waivers began August 24, 2005 for Florida, August 29, 2005 for Alabama, Louisiana, and Mississippi and, September 2, 2005 for Texas. See www.cms.hhs.gov/katrina/stark.
4 42 U.S.C.1395; also known as Section 1867 of the Social Security Act; also known as Section 9121 of the Consolidated Omnibus Budget Reconciliation Act of 1985.
5 45 C.F.R.160.101 et seq. to 164.102 et seq.
6 Other assurances include: programs that will reimburse facilities for providing dialysis to patients with kidney failure in alternative settings; Medicare contractors may pay costs of ambulance transfers of patients being evacuated from one healthcare facility to another; normal prior authorization and out-of-network requirements will also be waived for enrollees of Medicare, Medicaid or SCHIP managed care plans; and normal licensing requirements for doctors, nurses, and other healthcare professionals who cross state lines to provide emergency care in stricken areas will be waived as long as the provider is licensed in his or her state.
7 W.Va.Code Section 16-3-4(2004).
8 Stedman’s Medical Dictionary (27th ed. 2000).
9 42 U.S.C. Section 264 (2004).
10 Model State Emergency Powers Act, Article VI, Sec. 605.
11 Id.
12 Id.