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By Matt Fisher , Esq Twitter: Lagos Luna Pearl DoubleStrand Necklace 6OMDDA
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Matt Fisher

Access cannot be freely granted to data. Such is the reality of the world today. If a vendor is allowed to freely access, use or otherwise interact with data, unnecessary risk has been created. Why go down the risk-filled road, when issues can be identified and addressed? This question is central for healthcare entities, whether covered entities contracting with business associates or business associates contracting with subcontractors. The direct liability all of the way up and down the chain of access now firmly entrenched in HIPAA means no entity on any level can escape notice.

If risk exists on all levels, what can be done? Asking questions prior to full engagement of a vendor is the first step. Do not assume that a vendor is providing all necessary information, or even any of the relevant information when pitching services. Instead, having a questionnaire ready to go that can pull in baseline data. For example, ask a vendor whether it has HIPAA policies and procedures in place, when it conducted its last risk analysis, how the results of the risk analysis were used and whether a breach has ever occurred. Obtaining responses to these and similar questions can begin providing comfort as to the actual status of a vendor’s security and/or privacy preparedness.

If a vendor makes it past the initial road of vetting, the terms of the service agreement are the next important step. What requirements should be baked into the agreement and how specific or granular should those requirements go. The answer likely depends upon the nature of the services being provided. If a vendor is hosting protected health information or regularly transmitting protected health information, then the agreement may get quite specific as to types of encryption to utilize, means of transmission or other requirements. However, if the vendor provides a service where they only get a minor subset of protected health information, then a little more leniency may be possible. In addition to the scope of requirements for protection specified, consideration should be given to the consequences of non-compliance. Is there a monetary penalty, immediate termination or some other outcome? Again, the scope of remedies will depend upon the nature of the services, but all of these issues should be considered.

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