When you’re looking for clarity and conciseness, there’s two places you don’t want to go: Legal guidelines and government guidelines. Just try to read a “terms of agreement” or the IRS tax code for proof.
But when the Government puts out guidelines for handling private medical records, you need to know what they’re talking about. So we’ve decoded the Office of Civil Rights and Human Health Services’ Guidelines on HIPAA and cloud service providers.
Obviously, you can use a cloud service provider (CSP) to manage electronic protected health information (ePHI). In fact, with the amount of data, the expectations of patients, and the needs of labs and other resources, medical providers are finding that using a CSP is mandatory.
But before you send any ePHI to a CSP, you must enter into a business associate agreement (BAA) to be HIPAA compliant. When you decide to use a CSP, they become a business associate. Anyone the CSP subcontracts work out to is also considered a business associate to the original customer. That’s you must have a BAA with everyone who handles your records.
Even if the CSP is outside of the United States, they must be made HIPPA compliant through a BAA.
But don’t worry, not everyone who handles your data is a business associate. For example, if you mail a hard drive to a CSP, the postal office does not become a business associate.
A HIPAA compliant BAA will make sure that you and your CSP understand what it means to be HIPAA complaint and that the CSP has the network infrastructure to be compliant. However, if a BAA doesn’t fit all the needs of your specific field you can get even more specific with a Service Level Agreement. (SLA) In an SLA you can write out expectations that protect you from ePHI breaches and HIPAA violations.
A common way for medical providers to protect their data is by sending encrypted data to a CSP and keeping the decryption key. Even then, though, the government’s guidelines say you should still enter into a BAA with the CSP because they will not be exempt from HIPAA expectations and violations.
As long as you have a BAA with your CSP, sending encrypted data is a good way to protect your patient’s privacy. But, you should know that if there is a data breach at the CSP and your data is encrypted under HIPAA guidelines, then the CSP is not required to report the breach to you. This is called the “safe harbor” zone, so if you see those words know that it means security breaches that were not significant enough to be reported. In most cases though, the CSP is required under HIPAA to report any breaches to the customer.
But, if you look over the reporting requirements HIPAA lays out and don’t like what you see, you can write up more stringent requirements in your BAA and hold the CSP to them.
Another important part of the HIPAA guidelines is that a CSP is not required to release documentation of audits to a customer. It is the customer’s job to ensure HIPAA-compliant security measures when the BAA is drawn up. So, if you want an audit report from your CSP you’re going to have to make it a part of your agreement.
As a customer, you have leverage with your BAA, so don’t let anything slip by you when you write yours up.