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Regarding COBRA and pre-existing conditions.
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ANSWER
Although there are certain parts of the original HIPAA law from 1996 which deal with pre-existing conditions, they are beyond the scope of this website.
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Are there any changes to the forms that we were supplied?
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ANSWER
Other than the shortened privacy notice, there have not been any changes to the forms or tools supplied by GWT.
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Is there a new privacy notice?
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ANSWER
As you were previously notified by memo dated March 27, 2003, in response to the numerous requests from Pharmacists for a shorter privacy notice, GWT developed a two page privacy notice which was made available to Pharmacists who attended the GWT seminar. If you would like additional information regarding the shortened privacy notice, please call Janet Simonelli at (516) 393-2542.
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Business associate concept and the types of entities that are business associates.
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We received a variety of questions regarding the business associate concept and the types of entities that are business associates. The questions request clarification regarding business associates, subcontractors of business associates, consultants to other Covered Entities and Pharmacy Benefit Managers (PBMs). In order to assist Pharmacies, we provide below a general discussion of Business Associates and then discuss the specific questions posed.
ANSWER:
Business Associates are entities that perform services on behalf of the Pharmacy, where such services involve the receipt of Protected Health Information (�PHI�) from the Pharmacy, and the exchange of PHI is not for treatment purposes. The most critical factors for determining an entity is the Pharmacy's Business Associates are
(1) Is the entity providing services on behalf of the Pharmacy (as opposed to the patient, health plan or other Covered Entity)?;
(2) Does the service involve the disclosure by the Pharmacy of PHI to the entity?; and
(3) Is the disclosure for purposes other than treatment?
In order to be a Business Associate, the answers to each of items (1), (2) and (3) must be yes. If the answer to any of the items is no, the entity is not the Pharmacy's Business Associate.
Generally, Business Associates include entities like a software vendor or a switch, but do not include other pharmacies or third-party payors (e.g., Medicare, Medicaid or commercial insurers).
Subcontractors: As discussed above, one of the critical factors for determining whether an entity is a Business Associate is whether the Pharmacy discloses PHI to the entity. Generally, if a Pharmacy has a contract with a Business Associate to provide services and the Business Associate subcontracts with another entity to assist the Business Associate in performing its duties (with the Business Associate providing PHI to the subcontractor), the Business Associate would be required to enter into a subcontract (similar to a Business Associate Agreement) with the subcontractor, while the Pharmacy would not be required to execute an agreement with the subcontractor. If, however, the Pharmacy has a direct contractual relationship with the subcontractor and discloses PHI to the subcontractor, a Business Associate Agreement would be required between the Pharmacy and the subcontractor.
Consultants to Other Covered Entities: As discussed above, in order to qualify as a Business Associate, an entity must be providing services on behalf of the Pharmacy. If an entity is acting on behalf of another Covered Entity, and not the Pharmacy, it would not be the Pharmacy's Business Associate. For example, if a health plan/payor contracts with a consultant or auditor to perform services on behalf of the health plan/payor, then even if the consultant looks at the Pharmacy's PHI on behalf of the health plan/payor, the consultant would not be the Pharmacy's business associate. Therefore, the Pharmacy could disclose PHI to the consultant without a Business Associate Agreement.
PBMS: As discussed at the Garfunkel, Wild & Travis, P.C. (GWT) seminar, PBMs are generally Business Associates of the health plan/payor as they provide services on behalf of the health plan/payor and not the Pharmacy. PBMs are generally not Business Associates of a Pharmacy unless the Pharmacy has some special arrangement with the PBM to provide services on behalf of the Pharmacy. Accordingly, Pharmacies generally will not need Business Associate Agreements with PBM in order to disclose PHI to the PBMs.
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