HITECH/HIPAA Obligations of Cloud Services Providers

Background: HITECH sections 13401 and 13404 now apply certain HIPAA and HITECH security and privacy requirements to business associates (BAs).

Scenario: Company A provides healthcare administrative or electronic health record (EHR) systems through the cloud, or SaaS. Company A is therefore by definition a BA.

Question: Is Company A therefore responsible under HITECH for making sure its covered entity (CE) customers follow any specific policies and procedures for access to the hosted systems? What if the CE wants to do it in a way that violates the HITECH/HIPAA privacy or security rules? Does Company A have any obligation to police its customers?

My Answer:

1. I would characterize cloud services/SaaS as a joint IT environment. This places HIPAA/HITECH obligations on both services provider and customer.

2. One complex part of the answer is that the business associate obligations depend crucially on the terms of the business associate contract (BAC) which HIPAA/HITECH requires these parties to have. This gets into thorny questions I don’t want to address here – for now I would only say that I think you need to draft such contracts very carefully lest you set up regulatory obligations which are neither necessary nor appropriate, and might expose either or both parties to avoidable civil penalties and other liabilities.

3. Apart from BAC obligations, HITECH does create security obligations for BAs with responsibility for joint IT environments. These obligatios might well include an obligation to establish safeguards intended to ensure that users associated with one CE do not access services/PHI owned by another CE. CEs in fact, in my view, ought already to require this – that is my practice, working both with CEs and with vendors which operate joint IT environments for CEs. If Company A provides services in this way, it would have an obligation to stop – and to some extent prevent – CE user activity affecting other CEs.

4. As to policing CE user activity affecting only services/PHI of the same CE, I don’t think there is a per se answer. The BA might take on some safeguard services, maybe such as user registration, which would put it in a position where it might need to enforce CE policies. If CE policies seemed to violate the privacy rule, that might trigger issues for the BA under the new HITECH termination/snitch provision of 13404(b).

Conclusion: BA obligations in this area have to be analyzed specifically in terms of the services provided, with an eye to the obligations assumed by the BA and the BA’s ability to be on notice of an improper practice. In an “ordinary” cloud/SaaS model, the BA probably won’t have sufficient information to be able to identify CE violations, and probably wouldn’t want to assume responsibility for doing so. But avoiding this obligation will often require specific functional analyses of the operational model, and careful drafting of the contract.

In other words, don’t try this at home, kids.

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