May a covered entity pay a business associate to assist in making a refill reminder or other communication that falls within the “refill reminder” exception to marketing?
Yes. The Privacy Rule permits a covered entity to engage and pay a business associate to assist in making otherwise permitted communications to individuals and does not prescribe what the covered entity itself may pay the business associate for such services. However, where financial remuneration is received from the pharmaceutical manufacturer or other third party whose product is being described to make such communications, there are limits on what the business associate may be paid from that financial remuneration. In particular, a business associate only may receive, whether directly from the third party or through the covered entity from the financial remuneration the covered entity receives from the third party, payments not to exceed the fair market value of its services.