The long-awaited final modifications to the HIPAA Privacy, Security, Enforcement and Breach Rules were introduced Thursday. The 563-word document outlines the changes that were initially slated for implementation last summer (remember the omnibus rule?). So how do these modifications affect HIPAA cloud providers?
While cloud providers have generally been considered and treated as business associates in the industry, the modifications make it even clearer that data center operators are officially considered business associates and are also directly liable for being compliant with the HIPAA standards that apply to business associates. The federal document states:
A data storage company that has access to protected health information (whether digital or hard copy) qualifies as a business associate, even if the entity does not view the information or only does so on a random or infrequent basis. Thus, document storage companies maintaining 26 protected health information on behalf of covered entities are considered business associates, regardless of whether they actually view the information they hold. To help clarify this point, we have modified the definition of “business associate” to generally provide that a business associate includes a person who “creates, receives, maintains, or transmits” (emphasis added) protected health information on behalf of a covered entity.
As I wrote about in Healthcare Organizations: Seeking a Cloud Provider? BAAs Required, healthcare organizations need to be cautious about signing with ‘HIPAA-ready’ or ‘HIPAA certified’ cloud hosting providers. Being ‘HIPAA compliant’ or ‘HIPAA audited’ means they have undergone an independent audit, preferably measured against the latest OCR HIPAA Audit Protocol that outlines each requirement and auditor testing criteria.
If you use a cloud service, it should be your business associate. If they refuse to sign a business associate agreement, don’t use the cloud service. – David S. Holtzman of the Health Information Privacy Division of OCR during a speech at the Health Care Compliance Association’s 16th Annual Compliance Institute.
Another point they make is that business associates must also adhere to the Breach Notification Rule – including the subcontractors of business associates. For an example of what a breach notification clause might look like in a business associate agreement (BAA), read our BAA Breach Notification Clause.
Covered entities and business associates should take note – the document also states that “these proposed changes would make covered entities and business associates liable under § 160.402(c) for the acts of their business associate agents, in accordance 61 with the Federal common law of agency, regardless of whether the covered entity has a compliant business associate agreement in place.”
While business associates and agents are directly liable under HIPAA, covered entities are also directly held responsible for any actions of their business associates and other contractors down the chain of command; making a great case for why it’s important to carefully choose your HIPAA cloud hosting provider. Healthcare Software as a Service (SaaS) companies, EHR providers and other supporting healthcare vendors need to ensure their cloud Infrastructure as a Service (IaaS) providers undergo annual HIPAA audits, train their staff in security, and have the policies and procedures in place that adhere to security guidelines.
For more on using the cloud and secure hosting for HIPAA compliant solutions, read our HIPAA Compliant Hosting white paper. Questions to ask your HIPAA hosting provider, data center standards cheat sheet and a diagram of the technical, physical and administrative security components of a HIPAA hosting solution (including HIPAA compliant clouds) are included.
Or read our Mobile Security white paper for how to secure electronic protected health information (ePHI) while using mobile devices in the workplace, ideal for any healthcare organization interested in implementing a secure BYOD (Bring Your Own Device) environment.
Still have questions? Contact us now.
HIPAA Hosting Provider BAAs Need to Reflect HHS Final HIPAA Privacy & Security Rules
Does 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 … Continue reading →
Final HIPAA Omnibus Rule: Business Associate Agreements & Roadmap to Compliance
In addition to redefining business associates (BAs) and including subcontractors in the scope of liability, the final HIPAA omnibus rule has prompted the release of a new sample business associate agreement by the Dept. of Health and Human Services (HHS). … Continue reading →
No More Excuses: HHS Releases Tough Final HIPAA Privacy and Security Rules
Join us January 31st @2PM ET for a webinar with Brian Balow of the Dickinson Wright law firm to find out how the latest HIPAA modifications affect the healthcare industry and healthcare vendors. Title: No More Excuses: HHS Releases Tough … Continue reading →
Otava provides the secure, compliant hybrid cloud solutions demanded by service providers, channel partners and enterprise clients in compliance-sensitive industries. By actively aggregating best-of-breed cloud companies and investing in people, tools, and processes, Otava’s global footprint continues to expand. The company provides its customers in highly regulated disciplines with a clear path to transformation through its effective solutions and broad portfolio of hybrid cloud, data protection, disaster recovery, security and colocation services, all championed by an exceptional support team. Learn more at www.otava.com.