HIPAA Hosting Provider BAAs Need to Reflect HHS Final HIPAA Privacy & Security Rules

Posted 2.20.13 by

Mike KleinDoes your HIPAA hosting provider have a legal BAA (business associate agreement)?

I just got off the phone with our attorneys who are updating our business associate agreement to reflect the changes required in the HHS final HIPAA Privacy and Security Rules.

Section 164.504 of the final ruling has a list of specific clauses that are required to be in every BAA – including cloud and colocation providers that house ePHI (electronic protected health information).

There is no question that hosting and colocation providers are considered business associates by the Dept. of Health & Human Services in the final ruling, and subject to the same audits and penalties by the HHS’s Office for Civil Rights.  The challenge is how you incorporate the new HIPAA final ruling requirements into a BAA with a hosting provider.

Since there is no reason for a hosting provider to access ePHI, we believe every HIPAA compliant hosting and colocation provider should have a very strict set of policies and procedures against accessing any ePHI.  But, providing “designated record sets” and “amending designated record sets” as required by the new HIPAA final ruling requirements into a BAA is impossible if the hosting provider doesn’t access ePHI.

A properly worded BAA with your hosting provider should specifically address this “catch 22” scenario as well as the other requirements in the HHS final ruling – to protect both you and your hosting partner from creating contractual obligations in the business associate agreement that can not be met by either party.

Rest assured, our updated business associate agreement  reflects the final ruling and contractually protects both client and provider with clear responsibilities of each party.

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