RFP27006941 Business Associate Agreement Template-HIPAA.docx

Business Associate Agreement

This Business Associate Agreement (this “agreement”) entered into by and among the Rhode Island Department of Corrections (hereinafter “DOC”) and ____________________________ (hereinafter “Business Associate”) in order to comply with 45 C.F.R 164.502(e) and 164.504(e), governing Protected Health Information (“PHI”) and Business Associates under the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L. 104-191), 42 U.S.C Section 1320d, et. Seq., and regulations promulgated thereunder, as amended from time to time (statue and regulations hereinafter collectively referred to as the “Privacy Rule”).

STATEMENT OF AGREEMENT

§ 1.Definitions

Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in the Privacy Rule.

Examples of specific definitions:

A. Business Associate. “Business Associate” shall mean _______________________.

B. Covered Entity. “Covered Entity” shall mean DOC.

C. Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR 164.502(g).

D. Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E.

E. Protected Health Information. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR 164.501, limited to the information created or received by Business Associate from or on behalf of a Covered Entity.

F. Required By Law. “Required By Law” shall have the same meaning as the term “required by law” in 45 CFR 164.501.

G. Secretary. “Secretary” shall mean the Secretary of the Department of Corrections or his designee.

§ 2.Obligations and Activities of the Business Associate

A. Business Associate agrees to not use or disclose Protected Health Information other than permitted or required by the Agreement or as Required By Law.

B. Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than provided for by this Agreement.

C. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement.

D. Business Associate agrees to report to Covered Entity any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware.

E. Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this Agreement to the Business Associate with respect to such information.

F. Business Associate agrees to provide access, at the request of the Covered Entity, and in the time and manner, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual, and in the time and manner specified by the Covered Entity.

G. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR 164.526 at the request of the Covered Entity or an Individual and in the time and manner specified by Covered Entity.

H. Business Associate agrees to make its internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by the Business Associate on behalf of the Covered Entity, available to the Secretary, in a time and manner specified by Covered Entity or designated by the Secretary, for purposes of the Secretary determining the Covered Entity’s compliance with the Privacy Rule.

I. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528.

J. Business Associate agrees to provide to the Covered Entity or an Individual, in a time and manner specified by the Covered Entity, information collected in accordance with 2(i) of this Agreement, to permit the Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528.

K. Business Associate agrees to maintain the security of Protected Health Information it receives by establishing, at a minimum, the following security measures:

(1) Limit authorized access to Protected Health Information to persons having a “need to know” that information; additional employees or agents may have access to that information which does not contain information from which an individual can be identified.

(2) Business Associate will provide a written statement to each employee or agent as to the necessity of maintaining the security and confidentiality of Protected Health Information, and of the penalties provided for the unauthorized release, use, or disclosure of this information. Receipt of the statement is to be acknowledged by the employee or agent, who is to sign and return the statement to his or her employer or principal, who then is to retain the signed original. The employee or agent is also to be furnished with a copy of the signed statement.

(3) Take no disciplinary or punitive action against any employee or agent solely for bringing evidence of violation of the referenced security requirements to the attention of the Covered Entity.

L. In Accordance with the generally accepted ‘best practices’ and at the sole discretion of the Business Associate, it is recommended that the Business Associate train all the members of its workforce on the various elements and procedures with respect to PHI required by this Agreement, as necessary and appropriate for the members of its workforce to carry out their functions within the Business Associate organization. The Business Associate may wish to provide such training as follows:

(1) To each appropriate member of the Business Associate workforce within a reasonable time after the effective date of this Agreement.

(2) Thereafter, to each appropriate new member of the Business Associate workforce within a reasonable period of time after the person joins the Business Associate’s workforce.

(3) To each appropriate member of the Business Associate workforce whose functions are affected by a material change in the elements or procedures with respect to PHI required by the Agreement, within a reasonable period of time after the material change becomes effective.

(4) Business Associate may elect to document that such training has been provided to its workforce members.

§ 3.Permitted Uses and Disclosures by the Business Associate

General Use and Disclosure Provisions:

Except as otherwise limited in this Agreement, the Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, the Covered Entity and the Business Associate, provided that such use and disclosure would not violate the Privacy Rule if done by the Covered Entity or the minimum necessary policies and procedures of the Covered Entity.

Specific Use and Disclosure Provisions:

A. Except as otherwise limited in this Agreement, The Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.

B. Except as otherwise limited in this Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate provided that disclosures are Required By Law, or the Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

C. Except as otherwise limited in this Agreement, the Business Associate may use Protected Health Information to provide Data Aggregation services to the Covered Entity as permitted by 42 CFR 164.504(e)(2)(i)(B).

D. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with § 164.502(j)(l) of the Privacy Rule.

§ 4. Obligations of the Covered Entity

Provisions for the Covered Entity to inform the Business Associate of privacy practices and restrictions:

A. Covered Entity shall notify the Business Associate of any limitation(s) in its Notice of Privacy Practices of the Covered Entity in accordance with 45 CFR 164.520, to the extent that such limitation may affect the Business Associate’s use or disclosure of Protected Health Information.

B. Covered Entity shall notify the Business Associate of any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect the Business Associate’s use or disclosure of Protected Health Information.

C. Covered Entity shall notify the Business Associate of any restriction to the use or disclosure of Protected Health Information that the Covered Entity has agreed to in accordance with 45 CFR 164.522, to the extent that such restriction may affect the Business Associate’s use or disclosure of Protected Health Information.

Permissible Requests by the Covered Entity

The Covered Entity shall not request that the Business Associate use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.

Term and Termination

A. Term. The Term of this Agreement shall be effective as of the date of signature below, and shall terminate when all of the Protected Health Information provided by the Covered Entity to the Business Associate, or created or received by the Business Associate on behalf on the Covered Entity, is destroyed or returned to the Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.

B. Termination for Cause. Upon the Covered Entity’s knowledge of a material breach by the Business Associate, the Covered Entity shall either:

1. Provide an opportunity for the Business Associate to cure the breach or end the violation and terminate this Agreement if the Business Associate does not cure the breach or end the violation within the time specified by the Covered Entity.

2. Immediately terminate this Agreement if the Business Associate has breached a material term of this Agreement and cure is not possible; or

3. If neither termination, nor cure, is feasible, the Covered Entity shall report the violation to the Secretary.

C. Effect of Termination.

1. Except as provided in paragraph (2) of this section, upon termination of this Agreement, for any reason, the Business Associate shall return or destroy all Protected Health Information received from the Covered Entity, or created or received by the Business Associate on behalf of the Covered Entity. This provision shall apply to the Protected Health Information that is in the possession of subcontractors or agents of the Business Associate. The Business Associate shall retain no copies of the Protected Health Information.

2. In the event that the Business Associate determines that returning or destroying the Protected Health Information is infeasible, the Business Associate shall provide to the Covered Entity notification of the conditions that make return or destruction infeasible. Upon satisfaction of specific terms decided by the Covered Entity, that return or destruction of Protected Health Information is infeasible, the Business Associate shall extend the protections of this Agreement to such Protected Health Information and to limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as the Business Associate maintains such Protected Health Information.

§ 5. Miscellaneous

A. Regulatory References. A reference in the Agreement to a section in the Privacy Rule means the section as in effect or as amended.

B. Amendment. The parties agree to take such action as necessary to amend this Agreement from time to time as is necessary for the Covered Entity to comply with the requirements of the Privacy Rule and the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191.

C. Survival. The respective rights and obligations of the Business Associate under § 4 “Effects of Termination” of this Agreement shall survive the termination of this Agreement.

D. Interpretation. Any ambiguity in this Agreement shall be resolved to permit the Covered Entity to comply with the Privacy Rule.

E. Where permitted by the context, each pronoun used in this Agreement includes the same pronoun in other genders and numbers, and each noun used in this Agreement includes the same noun in other numbers. The headings of the various sections of this Agreement are not part of the context of this Agreement, but are merely labels to assist in locating such sections, and shall be ignored in constructing this Agreement.

F. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject manner of this Agreement.

G. This Agreement shall be binding upon, insure to the benefit of, and be enforceable by and against the Parties and their respective heirs, personal representatives, successors, and assigns. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be transferred or assigned by the Business Associate without the prior written consent of the Covered Entity.

H. With respect to any provision of this Agreement finally determined by a court of competent jurisdiction to be unenforceable, such court shall have the jurisdiction to reform such provision so that if it is enforceable to the maximum extent permitted by applicable law, and the Parties shall abide by such court’s determination. In the event that any provision of this Agreement cannot be reformed, such provision shall be deemed severed from this Agreement, but every other provision of this Agreement shall remain in full force and effect. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Rhode Island.

I. All representatives, covenants, and agreements in or under this Agreement, or any other documents executed in connection with the transactions contemplated by this Agreement, shall survive the execution, delivery, and performance of this Agreement and such other documents.

J. Each party shall execute, acknowledge or verify, and deliver any and all documents that may, from time to time, be reasonably requested by the other Party to carry out the purpose and intent of this Agreement.

§ 6. Term

This Business Associate Agreement shall remain in effect from the later of the two signatures below until ___________________.

Date

Acknowledged and agreed by:

Signature Signature

Title Date Title Date Revised 4/3/20