Signing HIPAA Contracts with Medical Tenants

Q We own many office buildings that have medical tenants. Several of these tenants have asked us to sign “business associate” contracts restricting our use and disclosure of their patients' confidential health information. These tenants claim that the Health Insurance Portability and Accountability Act (HIPAA) requires us to sign these contracts—but is that correct?

A Probably not, says Chicago attorney Nancy R. Livingston. Here's why: HIPAA requires health care providers (like your medical tenants) to protect the confidentiality of their patients' health information. As part of its protective efforts, a health care provider must get its “business associates” to sign contracts in which they promise to safeguard patients' health information the provider shares with them. HIPAA defines a “business associate” as a third party who receives “individually identifiable health information” about a patient and uses that information to provide a service for the health care provider, says Livingston. An example is a billing service that uses patients' confidential health information to bill both the patients and their insurers.

It's difficult to think of a scenario in which a commercial real estate owner would be considered a business associate and thus be required to sign a business associate contract, says Livingston. Nevertheless, to be on the safe side, discuss the situation with your attorney before refusing to sign a medical tenant's business associate contract, she advises.

Even if you and your attorney conclude that you should refuse to sign a business associate contract, a tenant may still demand that you sign some type of confidentiality agreement if you have the right to enter a medical tenant's space—say, to make repairs or do regular work, Livingston points out. That's because it's possible that you or your maintenance staff could inadvertently see patients' confidential health information when entering the medical tenant's space, she explains. But try to resist giving in to that demand, advises Livingston. Chances are the confidentiality agreement will have clauses that could hurt you financially, such as an indemnification clause requiring you to defend and reimburse the medical tenant for third-party claims of improper disclosure of confidential information, she warns.

Practical Pointer: If the medical tenant is nervous about your refusal to sign any confidentiality agreement, suggest that the medical tenant send you a letter reminding you that patients' confidential health care information is located in its space and that you and your staff are expected to act in a manner that will respect that confidentiality, advises Livingston. Although the medical tenant can't legally enforce such a letter against you, it might be satisfied that the letter has at least put you on notice about the presence of confidential information in its space, she points out.

CLLI Source

Nancy R. Livingston, Esq.: Partner, Schwartz, Cooper, Greenberger & Krauss, 180 N. LaSalle St., Ste. 2700, Chicago, IL 60601; (312) 516-4474; NLivingston@scgk.com.