When are Business Associates Directly Liable for HIPAA Violations?

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The Department of Health and Human Services' (HHS) Office for Civil Rights (OCR) has authority to take enforcement action against business associates only for the requirements and prohibitions of the HIPAA Rules as set forth below.

Business associates are directly liable for HIPAA violations as follows: 

1. Failure to provide the HHS Secretary with records and compliance reports; cooperate with complaint investigations and compliance reviews; and permit access by the Secretary to information, including protected health information (PHI), pertinent to determining compliance.

2. Taking any retaliatory action against any individual or other person for filing a HIPAA complaint, participating in an investigation or other enforcement process, or opposing an act or practice that is unlawful under the HIPAA Rules.

3. Failure to comply with the requirements of the Security Rule.

4. Failure to provide breach notification to a covered entity or another business associate.

5. Impermissible uses and disclosures of PHI.

6. Failure to disclose a copy of electronic PHI (ePHI) to either (a) the covered entity or (b) the individual or the individual’s designee (whichever is specified in the business associate agreement) to satisfy a covered entity's obligations under 45 CFR 164.524(c)(2)(ii) and 3(ii), respectively, with respect to an individual’s request for an electronic copy of PHI.

7. Failure to make reasonable efforts to limit PHI to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.

8. Failure, in certain circumstances, to provide an accounting of disclosures.

9. Failure to enter into business associate agreements with subcontractors that create or receive PHI on their behalf, and failure to comply with the implementation specifications for such agreements.
10. Failure to take reasonable steps to address a material breach or violation of the subcontractor’s business associate agreement.