To BAA or Not to BAA: Must You Have One?

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By Kim Stanger

HIPAA applies to both covered entities (e.g., healthcare providers and health plans) and their business associates. A “business associate” is generally a person or entity that “creates, receives, maintains or transmits” protected health information (PHI) in the course of performing services on behalf of the covered entity, e.g., consultants; management, billing, coding, transcription or marketing companies; information technology contractors; data storage or document destruction companies; data transmission companies or vendors who routinely access PHI; third party administrators; personal health record vendors; lawyers; accountants; malpractice insurers; etc.).1 “A covered entity may be a business associate of another covered entity” when it performs such functions on behalf of another covered entity.2  Also, with very limited exceptions, a subcontractor or other entity that creates, receives, maintains or transmits PHI on behalf of a business associate is also a business associate.3 To determine if an entity is a business associate, see our Business Associate Decision Tree. Read more

HIPAA and Subpoenas, Orders, and Administrative Demands

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By Kim Stanger

The HIPAA privacy rules (45 CFR § 164.501 et seq.) generally prohibit healthcare providers and their business associates from disclosing protected health information in response to subpoenas and other government demands unless certain conditions are satisfied. This outline summarizes HIPAA rules for responding to such demands. To the extent there is a more restrictive state or federal law that applies in a particular case, the more restrictive law will usually control. Read more

Mandatory Disclosures for Healthcare Workers Under Idaho Law

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By Kim Stanger

The HIPAA privacy rules allow healthcare providers to disclose protected health information to the extent another state or federal law or regulation requires it:

A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.1

(45 C.F.R. § 164.512(a)(1)). Importantly, HIPAA only allows such disclosures if the other law requires the disclosure, not if the other law simply allows disclosures. (78 FR 5618). In cases where another law permits but does not require disclosure, HIPAA would preempt the other law and prohibit the disclosure unless another HIPAA exception applied. Read more

Employee Vaccine Information: Privacy Concerns

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By Kim Stanger

Given the COVID-19 vaccine mandates, employers—including healthcare entities—will need to confirm their employees’ vaccination status. Employers and healthcare providers must ensure they comply with privacy rules relating to employee vaccination information, including those imposed by the Health Insurance Portability and Accountability Act (HIPAA) and Americans with Disabilities Act (ADA). Read more

HIPAA, Business Associates, and the Conduit Exception

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By Kim Stanger

The HIPAA privacy and security rules impose significant requirements on covered entities and their business associates; violations may result in penalties ranging from $119 to $59,522 per violation. (45 CFR § 160.404; 45 CFR § 102.3; 85 FR 2879). “Business associates” are generally those entities that create, receive, maintain or transmit protected health information (“PHI”) on behalf of a covered entity (45 § CFR 160.103, definition of business associate); thus, most entities that handle data for healthcare providers or their business associates will become business associates and subject to HIPAA requirements, including data storage, data transmission, and cloud services providers unless an exception applies. Read more