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Will the Feds Delay HITECH Business Associate Provisions?

Dom Nicastro, for HealthLeaders Media, February 22, 2010

A HIPAA privacy and security law firm is saying that OCR will delay enforcement of the HITECH provisions regarding business associates (BA) because it has yet to publish its own regulations surrounding those provisions.

Hunton & Williams LLP blogged Friday that Adam H. Greene, Office of the General Counsel for OCR, said the BA provisions will be delayed until final rules addressing those provisions are published. Greene spoke Thursday at the American Bar Association's 11th Annual Conference on Emerging Issues in Healthcare Law.

Though OCR has not published anything formally announcing a delay, at least one HIPAA expert believes a delay is likely.

Jeff Drummond, health law partner in the Dallas office of Jackson Walker LLP and author of HIPAA Blog, tells HealthLeaders Media that "it seems clear" OCR will not enforce any HITECH provision until it has published its own regulations and those regulations have become final.

Operating under HHS, OCR has published two regulations regarding HITECH and HIPAA—the HITECH Enforcement Final Rule and the interim final rule on breach notification.

The enforcement final rule, which includes a new penalty tier for breaches of unsecure PHI, is in effect. Breach notification is expected to be enforced starting today, February 22.

However, OCR has not published any rules or guidance on some key HITECH provisions—BA contracts and BA compliance with the HIPAA Security Rule and the use and disclosure provisions of the privacy rule.

Regardless of a enforcement delay, HITECH compliance dates for BAs still apply by statute, Drummond says.

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