If your practice is currently using a medical teleconferencing service (telemed), or if you are considering using one, you should know that the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the recently-finalized (March 2013) Rules promulgated thereunder, consider the provider of such service to be a “business associate.”
The final version of the HIPAA Rules require that covered entities (that would be you) enter into contracts with their business associates (that would be us) to ensure that the business associates will appropriately safeguard protected health information. This Business Associate Agreement also serves to specify the permissible uses and disclosures of protected health information by the business associate, based on the relationship between the parties and the activities or services being performed by the business associate. A business associate may use or disclose protected health information only as permitted or required by its business associate contract, or as required by law.
A business associate is directly liable under the HIPAA Rules and subject to civil and, in some cases, criminal penalties for making uses and disclosures of protected health information that are not authorized by its contract or required by law. A business associate also is directly liable and subject to civil penalties for failing to safeguard electronic protected health information in accordance with the HIPAA Security Rule.
If you’ll pardon my side trip into the legal weeds, a Business Associate Agreement must be written, and must:
(1) establish the permitted and required uses and disclosures of protected health information by the business associate;
(2) provide that the business associate will not use or further disclose the information other than as permitted or required by the contract or as required by law;
(3) require the business associate to implement appropriate safeguards to prevent unauthorized use or disclosure of the information, including implementing requirements of the HIPAA Security Rule with regard to electronic protected health information;
(4) require the business associate to report to the covered entity any use or disclosure of the information not provided for by its contract, including incidents that constitute breaches of unsecured protected health information;
(5) require the business associate to disclose protected health information as specified in its contract to satisfy a covered entity’s obligation with respect to individuals’ requests for copies of their protected health information, as well as make available protected health information for amendments (and incorporate any amendments, if required) and accountings;
(6) to the extent the business associate is to carry out a covered entity’s obligation under the Privacy Rule, require the business associate to comply with the requirements applicable to the obligation;
(7) require the business associate to make available to HHS its internal practices, books, and records relating to the use and disclosure of protected health information received from, or created or received by the business associate on behalf of, the covered entity for purposes of HHS determining the covered entity’s compliance with the HIPAA Privacy Rule;
(8) at termination of the contract, if feasible, require the business associate to return or destroy all protected health information received from, or created or received by the business associate on behalf of, the covered entity;
(9) require the business associate to ensure that any subcontractors it may engage on its behalf that will have access to protected health information agree to the same restrictions and conditions that apply to the business associate with respect to such information; and
(10) authorize termination of the contract by the covered entity if the business associate violates a material term of the contract.
Elsewhere on this site, my colleagues and I have noted that Skype® is owned by Microsoft, and that Microsoft has not been forthcoming regarding the use to which they might put any information gleaned from the popular VOIP service for which they paid $8.5 Billion two years ago. Microsoft does enter into Business Associate Agreements with users of its cloud services, but when it comes to Skype, the company has been evasive. In fact, Erik Kangas Ph.D., a blogger who follows this issue, says flatly:
Skype does not claim any kind of HIPAA compliance and will not sign a required Business Associate Agreement and does not provide the tools to use Skype in a way that allows you to meet your own HIPAA compliance requirements (e.g. auditing). – http://luxsci.com/blog
Stephen C. Taylor
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