Insight

What Non-Health Care Lawyers Need to Know about HIPAA

The privacy and security regulations under HIPAA have evolved into a long and winding regulatory road with more hurdles to come, as some of the rules are not yet promulgated.

Non-Health Care Lawyers HIPAA
Sarah E. Coyne

Sarah E. Coyne

June 26, 2017 12:58 PM

The privacy and security regulations under the Health Information Portability and Accountability Act (HIPAA) have evolved into a long and winding regulatory road with more hurdles to come, as some of the rules are not yet promulgated.

Because this law unfolded in pieces, including its scope and applicability, there are many entities outside the health care industry that are (perhaps unwittingly) “on the hook” for HIPAA compliance, and their steadfast corporate counsel may have no idea either.

Many Businesses (including Law Firms) Do Not Realize They Are Regulated by HIPAA

The final HIPAA omnibus rule came out in 2013, implementing changes that had been promulgated in the Health Information Technology for Economic and Clinical Health (HITECH) Act, which made some sweeping changes to HIPAA. Prior to the omnibus rule, affirmative compliance obligations and potential liabilities applied only to “covered entities,” which include health care providers and health plans, among other types of entities. “Business associates”—i.e., people or entities performing services to the covered entity or performing functions on the entity’s behalf involving protected health information (PHI)—were liable only contractually through the business associate agreements (BAAs) that HIPAA requires.

The omnibus rule defined the term “business associate” to include any person or entity (other than those in the capacity of a member of the covered entity’s workforce) who creates, receives, maintains, or transmits PHI on behalf of a covered entity for a function or activity regulated by HIPAA. The most significant expansion of the term was that now all subcontractors of business associates are also business associates.

The omnibus rule thus dramatically expanded the definition of “business associate,” rendered business associates directly liable to the government for HIPAA violations, and obligated business associates to have affirmative HIPAA compliance programs. This affects lawyers in two ways: (1) all lawyers who represent covered entities as clients and receive PHI are business associates of those clients and must have their own internal compliance programs; and (2) lawyers who do not live and breathe HIPAA may be unaware that their clients outside the health care industry are in fact covered as business associates under the expanded definition in the omnibus rule and have affirmative compliance responsibilities to avoid penalties.

It is like a hall of mirrors: if your reflection shows up anywhere, comply with HIPAA. As a result, like “first-line” business associates, subcontractors are now directly responsible for complying with certain HIPAA privacy and security obligations. In other words, from a compliance perspective, there is no difference between “first-line” business associates and “downstream” subcontractors. Additionally, just like covered entities, business associates are required by the new rules to enter into BAAs with subcontractors prior to disclosing PHI.

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky