Do forensic firms need to be HIPAA compliant? 

The interaction between forensic firms and HIPAA is complex, marked by the need to balance forensic, legal, and ethical obligations with federal privacy regulations. HIPAA’s Privacy and Security Rules apply to secure protected health information (PHI) regardless of its form, electronic, spoken, paper, or otherwise, and forensic firms classified as business associates must ensure confidentiality and handle legal requests for PHI, like subpoenas, appropriately. 

An Academic Forensic Pathology study on the topic of HIPAA in relation to medical examiners and coroners notes, “Medical examiner and coroner government offices are not covered entities. Moreover, HIPAA specifically allows disclosure to law enforcement, public health, and medical examiner and coroners.” Forensic entities exempt from HIPAA still face applicable state privacy laws that may impose additional protections.

When forensic firms are considered covered entities or business associates

Covered entities under HIPAA include health plans, healthcare clearinghouses (such as billing services), and healthcare providers who electronically transmit any health information in connection with transactions for which the Department of Health and Human Services (HHS) has adopted standards.

Forensic firms’ roles vary widely, ranging from forensic psychiatry, forensic pathology, to digital forensic services. A determinant of whether they are considered covered entities or business associates hinges on whether they handle PHI on behalf of covered entities. For example, forensic psychiatrists who prepare court reports involving patient medical information, or digital forensic firms dealing with electronic health records, may meet the criteria of business associates under HIPAA. 

Business associates are defined as persons or entities (other than members of a covered entity’s workforce) that perform functions or activities involving the use or disclosure of PHI on behalf of, or provide services to, a covered entity. When forensic firms act in these capacities, they must enter into business associate agreements (BAAs) with the covered entities. 

A study published in the Public Health Reports provides, “The Omnibus Rule expands the definition of a 'business associate' to include all entities that create, receive, maintain, or transmit PHI on behalf of a covered entity, making clear that companies that store PHI on behalf of health care providers and health plans are business associates.”

The distinction between forensic services and healthcare/treatment services

Forensic services are primarily concerned with legal and public safety objectives. They involve health-related evaluations, treatments, or interventions carried out with the specific purpose of supporting criminal justice processes, such as assessing individuals' mental state for court proceedings, determining fitness for trial, or investigating causes of death in medicolegal contexts. Healthcare or treatment services center exclusively on patient-centered care to promote health, recovery, or illness management without legal oversight. Forensic services must reconcile the healthcare goal of patient well-being with the legal imperative to assess, manage, and mitigate risk to public safety and judicial outcomes.

A study from the Journal of Forensic Psychiatry and Psychology notes, “Forensic mental health services must contend with tensions that result from intersecting health and criminal justice policy objectives. Each perspective generates a unique understanding of both the people who use forensic mental health services and the values that underpin forensic mental health systems.”

Patients are viewed from two distinct perspectives, as ‘patients’ who require therapeutic support and as ‘accused persons’ who may pose risks requiring control and containment. This creates inherent tensions not present in general healthcare. Healthcare services embrace recovery-oriented, patient-centered models where patient autonomy, therapeutic alliance, and holistic needs guide care delivery. Forensic services, however, operate within an environment where safety, security, and risk reduction often require restrictive measures such as detention, seclusion, or close supervision that may limit autonomy.

Where forensic firms are exempt

Several forensic entities and activities are explicitly exempted from HIPAA due to their legal and public safety roles. One of the main exemptions includes government-run medical examiner and coroner offices. These offices operate ‘under color of law’ and fulfill statutorily mandated functions related to death investigations and public safety. 

The above mentioned Academic Forensic Pathology study notes in more detail, “HIPAA specifically defines exemptions, where the consent of the patient is not required. These specifically exempt coroners and medical examiners (45 CFR § 164.512(g)(1)), and other relevant exemptions including disclosures where required by law and for public health purposes…”

Private forensic pathology consultants or forensic firms operating outside the statutory authority of government offices are generally not exempt from HIPAA if they handle PHI as part of their service contracts with covered entities. Although these private entities are not covered entities themselves, they would be categorized as business associates. If they only engage in activities that do not involve the disclosure or handling of PHI, the HIPAA regulations may not apply.

HIPAA allows for several other exceptions and disclosures ‘required by law’ or permitted for public health, law enforcement, and judicial purposes that affect forensic operations. Disclosures of PHI to law enforcement officers for identifying or locating a suspect, fugitive, material witness, or missing person are permissible under HIPAA exceptions, particularly when requested by law enforcement in connection with these purposes. There are limits on the type of PHI that can be disclosed, such as restrictions on releasing dental records or DNA information that could identify a missing person, even during legitimate forensic investigations.

How to ensure business associates remain HIPAA compliant

1. Before entering into any contractual relationship with a business associate healthcare organizations should carefully vet the third party. It requires a good look at their security protocols, security practices, and how they handle breaches. 
2. A BAA should be in place to set clear guidelines for the relationship between them and the firm. 
3. After the BAA is in place, there should be measures in place to continuously monitor the business associates' dedication to upholding security standards.
4. Ensure that the business associate maintains secure communications that comply with HIPAA. Organizations that value security like the HIPAA compliant email platform Paubox present an example of a security practice and no history of data breaches.
5. If the business associate uses a subcontractor to perform functions involving PHI the healthcare organization should ensure that these subcontractors are also HIPAA compliant. The BAA should extend to subcontractors.

FAQs

What is HIPAA? 

The Health Insurance Portability and Accountability Act is a law designed to protect the privacy and security of people’s PHI.

What is a covered entity? 

A covered entity is a healthcare organization or business that needs to follow HIPAA’s rules. It includes: 

• Healthcare providers
• Health plans
• Healthcare clearinghouses
  
  

What happens if a noncompliant service provider is used by a covered entity?

If a covered entity uses a service provider that does not comply with HIPAA they face serious consequences including the possibility of ransoms and possible penalties.