Business Associate Agreements Matter Demystifying the Perceived Simplicity of HIPAA Agreements Holland Knight LLP JDSupra

pppFor most healthcare providers and businesses signing a Business Associate Agreement BAA is a standard practice When contracting to provide services with an entity governed by the Health Insurance Portability and Accountability Act HIPAA it is a requirement that the entity enter into a business associate contract also known as a BAA This includes HIPAA covered entities their business associates and downstream business associate subcontractors However parties often treat the agreements as boilerplate and either fail to read and negotiate their terms or worse forego executing the agreement altogether Contrary to popular belief though BAAs are critically important and can make or break a compliance program if not taken seriously Though it may seem easiest to simply sign a BAA as a standard attachment to a service agreement this Holland Knight alert will highlight five of the many reasons why parties should always read review and negotiate the terms prior to executionppHIPAA clearly outlines the required elements of a BAA and the US Department of Health and Human Services HHS Office for Civil Rights OCR provides sample agreements on its website Though this guidance is helpful it is important to understand that the sample agreements represent the minimum requirements for BAAs Pursuant to 45 CFR 164504e a BAA between a covered entity and a business associate mustppThese elements must be included in all business associate agreements in order for the agreement to be considered validppBAAs should not be viewed as standard boilerplate They require careful review and consideration by both partiesppThough this list is not exhaustive it represents five of the biggest considerations for parties when entering into BAAs HIPAA permits the addition of other terms that are not inconsistent with HIPAA Provisions addressing indemnification injunctive relief relationship to state privacy laws and other federal laws such as Part 2 Privacy and Cures Act information blocking along with other terms may be considered The terms of these agreements can make or break a partys privacy compliance program and should be treated as important topics of negotiation instead of boilerplateppSee more ppDISCLAIMER Because of the generality of this update the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations
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