Team NewsletterMay 2022
General Counsel Update from Dennis
To BAA or not to BAA that is the question.
What is a BAA? it is a Business Associate Agreement?
Why should I be concerned about a BAA? A BAA must be in place prior to any Protected Health Information (PHI) being shared with a Business Associate. Recently a medical practice failed to implement a BAA and they were fined $31,000 for the disclosure of the PHI – so failing to comply can be costly to your Facility and Mission Point.
So, what is a Business Associate (BA)? The Department of Health and Human Services defines it as “a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity.” The covered entity being the Mission Point Facility. Clear as mud, right — a Business Associate is someone that performs functions and activities – doesn’t everyone?!?!
Well, they are not a Business Associate if they do not see or are not provided any PHI. Since the HVAC contractor will not see or be provided with PHI, nor will the mail carrier or Fed Ex, or the plumber, the lawn care company or the cleaning company. Because of this they are not a BA and they do not need to sign a BAA.
Also, if we are sharing the PHI with another covered entity for purposes of treatment a BAA is not needed. So, we do not need a BAA with our medical director, with Medicaid or Medicare, laboratories, or pharmacies. So long as the disclosure of PHI is for TREATMENT we do not need a BAA.
But, we do need one if we hired a consultant, lawyer or accountant that had access to PHI. We would also need one if another health care provider was providing consulting services (as opposed to helping with treatment).
Be careful, however, just because a BAA is signed that is not all that needs to be considered. Remember we should only share the minimum amount of PHI and the BA should only request the minimum amount of PHI that is required in order for the BA to perform the services they are being contracted to perform.
So, if signing a contract ask your self if a BAA is required, and if you have any question – call me I am here at 248-940-5537.
Dennis Schreibeis – General Counsel