Author Topic: Business Associate Agreements  (Read 3207 times)

PMRNC

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Business Associate Agreements
« on: April 12, 2014, 02:26:04 PM »
THIS IS AN EXCELLENT ARTICLE ABOUT Business Associate Agreements!!! A MUST READ!!!!

http://searchitchannel.techtarget.com/opinion/HIPAA-business-associate-agreement-consultations-could-be-unlawful

Linda Walker
Practice Managers Resource & Networking Community
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www.billerswebsite.com

RichardP

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Re: Business Associate Agreements
« Reply #1 on: April 12, 2014, 05:35:20 PM »
Which came first - an agreement between two adults who chose freely to be bound by that agreement, or the American Bar Association?

One must be careful to not over-reach when defining the activity called practicing law.

I do not need to consult a lawyer to enter into a contract with someone (contract = consideration given and something offered in return; a contract does not exist if one of those is missing).  I can enter into a contract with anyone of legal age and sound mind who cares to enter into a contract with me.  I don't need a lawyer to do that.  I can ask others for suggestions as to how I should draft the contract if I am going to put it in writing (a contract can be verbal).  The other party to the written contract can let others review it and ask for suggestions about whether the wording is sufficient.  These are not rights given to us by any nation or state's Constitution.  They are natural rights that are operated on every time two or more people agree on something and give their word that they will carry out the agreed-upon action - whether that agreement is only verbal or is written down.

One practices law when one gives a professional opinion on how any agreements reached in the previous paragraph line up with the requirements of the state or nation.  Such an opinion is correctly limited to only those who have gone through a course of study and have passed an appropriate examination which proves they know the laws of said state or nation (for example, passing the state Bar exam).

With regard to a business associates agreement, one is not practicing law if they offer points that should be included in any agreement/contract that is going to be reviewed by a health-care attorney.  One is practicing law if they offer a professional opinion about whether the agreement / contract contains everything required by state and Federal law.

Helping someone prepare something they are going to submit to a healthcare attorney for review is OK.  Pretending to be a healthcare attorney is not OK.  The state has a right and a duty to protect us from those who pretend to be something they are not.

So - how does the state distinguish between someone who is only trying to be helpful and someone who is trying to present themselves as something they are not?  In many instances, not very well.  And so we end up with the types of articles Linda linked to - offering a caution that it is probably better to be safe than sorry.  I agree that there is a need to be cautious.  I don't agree that there is need to be freaked out.

PMRNC

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Re: Business Associate Agreements
« Reply #2 on: April 12, 2014, 06:24:07 PM »
Richard, in some states it's actually practicing law if you negotiate or re-negotiate contractual agreements.

Just for a small example.. if you have a client that wants some part of your contract amended, depending on WHAT it is, it does matter. If you do FULL credentialing for a client there are many aspects of a managed care contract YOU CANNOT negotiate in some states w/out consulting an attorney.
Linda Walker
Practice Managers Resource & Networking Community
One Stop Resources, Education and Networking for Medical Billers
www.billerswebsite.com

RichardP

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Re: Business Associate Agreements
« Reply #3 on: April 12, 2014, 10:05:43 PM »
Agreed.  Since corporations and other legal entities are creations of the state, the state has the right to regulate how those entities interact with each other and with people.  But only up to a point.

The state (or Federal government) cannot regulate a person's thoughts.  Therefore, the state cannot regulate the creativity involved in the design of a particular agreement (thoughts such as who is our target audience; what are we willing to give as consideration in return for what we get from the signatories to the contract, etc.)  In the design phase, all kinds of information are collected and considered.  The state cannot regulate the design of an agreement.  But it can and does regulate the implementation of that agreement (and any subsequent alerations of the agreement).

The article you linked to above concerned mainly the design phase of an agreement, not the implementation phase.  Folks are free to educate themselves in whatever manner they see fit in the creative design phase of an agreement, including a Business Associates Agreement.  But, as you've pointed out, folks are not free to implement such an agreement in whatever manner they see fit.  The agreement must comply with state (and maybe Federal) laws- so it needs to be vetted by someone authorized by the state to vet the agreement.  If for no other reason than for your own peace of mind that the agreement actually does cover your ass in the way the law requires.

Michele

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Re: Business Associate Agreements
« Reply #4 on: April 13, 2014, 08:07:31 AM »
I agree that there is a need to be cautious.  I don't agree that there is need to be freaked out.

Well said.   :)    Thanks Linda for sharing the article.  Sometimes people need to be reminded to be cautious.
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Merry

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Re: Business Associate Agreements
« Reply #5 on: April 13, 2014, 09:35:50 AM »
Very interesting discussion

PMRNC

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Re: Business Associate Agreements
« Reply #6 on: April 30, 2014, 08:22:04 AM »
I ran across another discussion on Business Associate agreements recently that was definitely worth discussing about indemnification clauses in BAA's.
How many medical billing/practice management companies have an "indemnity" clause in their Business Associates agreement? Even though the CE is responsible for the BA Agreement, many times we have to have our clients sign one that we have drafted. But let's assume the CE puts forward a BAA that has an indemnity clause to protect them? Should we as BA's also include or negotiate a dual indemnity clause in our BAA's?
 I put up some sample clauses in our HIPAA area, I think it's definitely worth a discussion because many of the ingredients to a BAA are simply guidelines, indemnification clauses are certainly worth consulting our attorney's about.
Linda Walker
Practice Managers Resource & Networking Community
One Stop Resources, Education and Networking for Medical Billers
www.billerswebsite.com