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HHS responded that it would not exempt attorneys from the business associate requirements, however:
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Another commented that the requirement to return or destroy PHI at the end of the business associate contract conflicts with the professional responsibility to maintain client records. When the rule about lawyers as business associates was first published for comment before being finalized, some commenters objected, saying it would interfere with attorney-client privilege. HHS Administrative History Provides Guidance Unlike attorney-client privilege, attorneys have an independent right to protect their own Work Product. Right to Protect Work Product – Both the attorney and the client have the right to protect Work Product. There are two categories: documents and other tangible items prepared in anticipation of litigation or for trial, and documents containing mental impressions, strategies and plans prepared in anticipation of litigation or for trial. Work Product is material prepared in anticipation of litigation. The privilege may also be waived unintentionally if the confidentiality is broken, that is, a confidential communication is disclosed to a third party who does not have a right to receive it. A client has the right to direct an attorney to waive the privilege on their behalf and the attorney must do so. Waiver – The attorney-client privilege belongs to the client and only the client has the right to waive that privilege. Attorney-Client PrivilegeĪttorney-client privilege protects communications between clients and attorneys in confidence for the purpose of obtaining or providing legal assistance for the client. Lawyers have a separate professional responsibility to protect attorney-client privilege and work product material, and yet under HIPAA, business associates are required to disclose information to the HHS Secretary to aid an investigation. A Lawyer is a Special Kind of Business Associate These disclosures broadly cover all PHI maintained by a business associate and all its internal practices, books and records relating to the use and disclosure of PHI received from a covered entity and maintained by a business associate without mention or exemption of materials that are within the scope of attorney-client privilege or subject to protection under the work product doctrine.
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They are HIPAA business associates and directly liable for their own HIPAA compliance. Lawyers who represent health care providers, health plans or health care clearinghouses need to comply with HIPAA if they encounter protected health information (PHI) during their representation. (The terms lawyer, attorney and law firm are all used in today’s blog, and are interchangeable here.)īut some administrative history about lawyer/business associate requirements can help lawyers comply with their ethical responsibility to maintain client confidentiality if their HIPAA compliance is investigated. Balancing both is essential to maintain client confidentiality and patient privacy. A myth about the practice of law that even some lawyers don’t understand is that the attorney-client privilege does not shield lawyers from HIPAA compliance requirements.