Wendy, Just to add my own humble opinion....
I think that Errick has a good point - one worth emphasizing. Don't let the flow of money confuse the issue. The definition of business associate does not mention who is paying who; just what is done, and for whom. I think what you have to look at (as you indicate below) is what services are being provided, are they done on your behalf, and do some of these services go beyond the realm of treatment. We (as a nursing facility) have contracts with several providers to define the services provided to residents of the facility, but these contracts address treatment and do not necessarily bring us into the realm of a business associate relationship. Some of the providers provide services that go beyond treatment, and are for our benefit; in those cases, we sign a BAA. Some of the providers simply provide treatment, and the contracts are required for other reasons, but pretty much just say they are there for treatment of residents; we do not sign BAA with them. Just my own thoughts. I think sometimes we let other details confuse us (kinda like the math word problems when we were kids, and we had to identify which information given to us was necessary to solve the problem). I do remember OCR stating that just because a provider has a contract with someone does not mean that they are a business associate. Rather, the nature of the relationship has to be examined to determine if they are a BA. Rachel -----Original Message----- From: Reynolds, Wendy J [mailto:[EMAIL PROTECTED] Sent: Monday, November 10, 2003 1:28 PM To: WEDI SNIP Privacy Workgroup List Subject: RE: business associate - yes or no? I guess my heartburn with this one is that this is the not the "normal indirect treatment relationship" which we'd normally have with another covered entity. This is for contracted services. We receive grant money, and in turn we contract with a hospital to provide breast and cervical cancer screenings and follow up diagnostic services. This contract is for the contractor to follow our criteria for patient eligibility, we tell the contractor what types of services to provide and how often, we also tell the contractor how to report the findings. Furthermore, the contractor must perform case management, surveillance, transportation as per the agreement signed by us. The contractor also has to provide a percentage of matching funds which may include a differential between any usual fees charged and the reimbursable capita rate. I can understand that diagnostic services are "indirect treatment", but these services are not the same as a doctor referring patients to an independent diagnostic facility. There are other operational type things going on beside treatment. If I cannot talk the contractor into signing a mutually acceptable BAA, I will probably let them execute without it and pose the question to OCR (and wait 6 months for an answer...) Thank you everyone who replied. I appreciate the sounding board. Wendy J. Reynolds, MPA, CHP EVMS Director of Privacy Program EVMS HS Clinical Auditor Eastern Virginia Medical School Fairfax Hall, 1st floor 721 Fairfax Avenue Norfolk, VA 23507 (757) 446-0337 [EMAIL PROTECTED] -----Original Message----- From: taway3 [mailto:[EMAIL PROTECTED] Sent: Monday, November 10, 2003 2:18 PM To: WEDI SNIP Privacy Workgroup List Subject: RE: business associate - yes or no? Rachel and Wendy, I'm going to respectfully disagree. If my physician sends me to an imaging facility for x-ray, would that not be a treatment relationship? My understanding is that two CE's collaborating on treatment do not require a BAA. What is different here? Regards, Roger Wernow RMW Associates (A Consulting Company) 321-956-0485 -----Original Message----- From: Rachel Foerster [mailto:[EMAIL PROTECTED] Sent: Monday, November 10, 2003 1:38 PM To: WEDI SNIP Privacy Workgroup List Subject: RE: business associate - yes or no? Wendy, based on your description of this activity I would conclude that your contractor is indeed your business associate. You have engaged this contractor to perform a function on your behalf using PHI. Rachel Foerster Rachel Foerster & Associates, Ltd. Voice: 847-872-8070 email: [EMAIL PROTECTED] -----Original Message----- From: Reynolds, Wendy J [mailto:[EMAIL PROTECTED] Sent: Monday, November 10, 2003 12:06 PM To: WEDI SNIP Privacy Workgroup List Subject: business associate - yes or no? I am in the process of reviewing a contact which will entail an agreement between us (a covered entity) and the contractor (another covered entity) in which the contractor will provide cancer screening/diagnostic tests to a specific category of women (income guidelines, age, etc.) per grant parameters. I am having trouble with this one, because usually "treatment" reasons do not necessitate a business associate agreement between two covered entities. However, we are paying the contractor a per capita rate to provide the services (diagnostic tests) to these patients. If patients need further treatment, they are referred back to us to take care of. In this situation, I am not sure the contractor is really providing "treatment" to the patients. Furthermore, in this situation, the contractor is providing this service on our behalf, for us, and are receiving money from us to provide these services. This arrangement does not fit the business associate exceptions or examples as listed on the OCR website. I have read the definition of treatment in the regs, but really think this arrangement should have a BAA. But of course the contractor disagrees. Am I being too picky? Any opinions out there? Wendy J. Reynolds, MPA, CHP EVMS Director of Privacy Program EVMS HS Clinical Auditor Eastern Virginia Medical School Fairfax Hall, 1st floor 721 Fairfax Avenue Norfolk, VA 23507 (757) 446-0337 [EMAIL PROTECTED] --- Outgoing mail is certified Virus Free. Checked by AVG anti-virus system (http://www.grisoft.com). Version: 6.0.537 / Virus Database: 332 - Release Date: 11/6/2003 --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an official opinion, post your question to the WEDI SNIP Issues Database at http://snip.wedi.org/tracking/. These listservs should not be used for commercial marketing purposes or discussion of specific vendor products and services. 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