Our counsel has just reviewed this question based on the following:
The rule states "A business associate is not a member of the health care provider, health plan, or other covered entity's workforce." "A health care provider, ... can also be a business associate to another covered entity." "Business associate requirements do not apply to covered entities who disclose PHI to providers for treatment purposes" however, payment and health care operations are excluded from the exception. Therefore, it appears to us that agreements are required with providers to provide PHI relative to payment and health care operations and if a provider were to perform a service that didn't involve treatment, but did involve disclosure of PHI, (e.g. acting as Medical Director of dept., providing quality assurance or utilization mgt services). Our interpretation is that contracted providers fall outside the definition of "workforce" because the covered entity doesn't exercise anymore "direct control" than with any other contracted service and Business associate agreements are permitted with providers (employed and contracted)to facilitate compliance and avoid liability associated with exceptions.
45 CFR 106.103;164.501;164.520(e);DHHS Guidance dtd 7/6/01
Comments?
-----Original Message-----
From: Lively, P. Susan [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, November 14, 2001 10:37 AM
To: '[EMAIL PROTECTED]'; [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED]
Subject: RE: Business Associate Contracts
Peter -- I hate to disagree, but look at the definition of "organized
healthcare arrangement." That definition was specifically placed in the
rules to allow for this situation where physicians have staff privileges at
hospitals and healthcare facilities but are not members of the workforce.
Also, look at the preamble to the Rules at pp. 82494, top of column 2.
There is a specific statement that "the most common example of [an]
organized healthcare arrangement is the hospital setting, where a hospital
and a physician with staff privileges are the hospital together provide
treatment to the individual. No separate consents and No business associate
contracts are required because this is part of "health care operations."
Others in this arrangement that are not there to provide healthcare may need
BA contracts, but generally you should not need BA contract provisions for
physicians and other clinicians.
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, November 14, 2001 11:41 AM
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED]
Subject: Re: Business Associate Contracts
Cindy,
In my humble opinion, the determinative issue is not whether the party to
whom the protected health information (PHI) is entrusted is a covered
entity, but whether the covered entity receiving the PHI is performing some
function or service on behalf of the other covered entity. �If the answer
is affirmative, then a business associate contract would be required. �You
would need consider whether under your interpretation of the law (and that
of your counsel, of course) �you would deem the physicians to be performing
a function with the PHI on behalf of the nursing home. �It could be argued
that the physicians would not be performing �functions using the PHI for
the nursing home, but �for patients. �More facts would be required to do
the appropriate analysis. �With regard to the "fiscal intermediaries, "
you've already concluded that they are covered entities. �Again, you would
have to determine whether they, too, are performing functions for the
benefit of or on behalf of a covered entity who is entrusting PHI to them.
Peter
************************************************
Peter B. Goldstein
Cap Gemini Ernst & Young, US LLC
4610 South Ulster Street, Suite 600
Denver, Colorado �80237-4323
(303) 796-4148 (Direct)
(413) 740-0512 (Facsimile)
cap comm: 657 4653
[EMAIL PROTECTED]
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"paulhastings.com" made the following annotations on 11/14/01 12:36:57
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