In providing legal services to a covered entity, must a lawyer who is a business associate require that those persons to whom it discloses protected health information agree to abide by the privacy restrictions and conditions that apply to the lawyer?

Answer:

It depends on who the recipient is. The business associate agreement between the covered entity and the lawyer-business associate must provide that the lawyer will ensure that any agents, including subcontractors, to whom it provides protected health information agree to the same restrictions and conditions that apply to the business associate with respect to the information. See 45 CFR 164.504(e)(2)(ii)(D). 

Thus, if a lawyer-business associate enlists the services of a person or entity in furtherance of the lawyer’s legal services to a covered entity, and the lawyer must provide protected health information to the person or entity for such purpose, the lawyer’s business associate contract with the covered entity requires that the lawyer ensure that these persons agree to the same restrictions and conditions with respect to the protected health information they receive that apply to the lawyer as a business associate. 

For example, pursuant to its business associate contract, a lawyer must ensure that other legal counsel, jury experts, document or file managers, investigators, litigation support personnel, or others hired by the lawyer to assist the lawyer in providing legal services to the covered entity, will also safeguard the privacy of the protected health information the lawyer receives to perform its duties. Conversely, a lawyer-business associate need not ensure that opposing counsel, fact witnesses, or other persons who do not perform functions or services that assist the lawyer in performing its services to the client, agree to the business associate restrictions and conditions, even though the lawyer may have to disclose protected health information to these third parties.