SRC0000037427 Exhibit 5 Business Associate Agreement.docxSRC0000037427 Exhibit 5 Business Associate Agreement.docx
DOCX document 51 KB Posted
- Solicitation number
- SRC0000037427
- Issued by
- Ohio
About this file
This is a Business Associate Agreement (BAA) between the Ohio Department of Administrative Services (DAS), serving as the Covered Entity, and a Business Associate that will provide services under a concurrent agreement related to the State's Employee Population Health Management (PHM) Program. The agreement establishes the terms and conditions under which the Business Associate will have access to Protected Health Information (PHI) in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the HITECH Act, and related federal regulations. The PHM program serves approximately 42,550 eligible active state employees, surviving spouses of Ohio Police & Fire Death Benefit Fund recipients, and their dependents across a geographically dispersed workforce of approximately 50,500 employees in approximately 1,540 work locations concentrated in Ohio. The agreement applies to all services and arrangements under which the Business Associate furnishes services involving PHI and supersedes any prior business associate agreement as of the effective date.
The Business Associate must implement administrative, physical, and technical safeguards aligned with NIST Special Publication 800-53 Rev. 4 and comply with State of Ohio IT Standard ITS-SEC-01 for data encryption of electronic PHI. The Business Associate is required to maintain cyber and privacy liability insurance with minimum policy limits of $3,000,000 per claim covering HIPAA breaches, BAA violations, and Privacy Law violations on a claims-made basis with tail coverage or occurrence basis. The Business Associate must report any unauthorized use, disclosure, or security incidents affecting electronic PHI to DAS no later than three business days after discovery and any suspected or confirmed breaches of unsecured PHI within three business days of discovery. The Business Associate is responsible for all costs associated with breach notification and credit monitoring services and must indemnify DAS for any damages arising from breaches, unauthorized disclosures, or violations of Privacy Laws. Upon termination of the agreement, the Business Associate must return or destroy all PHI maintained, with protections extending indefinitely if destruction or return is infeasible. The agreement survives termination of the underlying contract and establishes the Business Associate as an independent contractor with no agency or employment relationship to DAS.
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EXHIBIT 5
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (“BAA”) is made and entered into by and between the Ohio Department of Administrative Services (“Covered Entity”), located at 30 East Broad St., 40th Floor, Columbus Ohio 43215, and [NAME OF BUSINESS ASSOCIATE] (“Business Associate”), located at [ADDRESS]. In this BAA, Covered Entity and Business Associate are each a “Party” and collectively are referred to as the “Parties.”
BACKGROUND
WHEREAS, Covered Entity is a “covered entity” as that term is defined under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the HITECH Act (as defined below) and the related regulations promulgated by HHS (as defined below) (collectively, “HIPAA”) and, as such, is required to comply with HIPAA’s provisions regarding the confidentiality and privacy of Protected Health Information (as defined below); and
WHEREAS, the Parties have entered into an agreement concurrent with this BAA under which Business Associate will provide certain specified services to Covered Entity (“Agreement”); and
WHEREAS, in providing services pursuant to the Agreement, Business Associate will have access to Protected Health Information (“PHI”); and WHEREAS, by providing the services pursuant to the Agreement, Business Associate will become a “business associate” of the Covered Entity as such term is defined under HIPAA; and
WHEREAS, both Parties are committed to complying with all federal and state laws governing the confidentiality and privacy of health information, including, but not limited to, the Standards for Privacy of Individually Identifiable Health Information found at 45 CFR Part 160 and Part 164, Subparts A and E (collectively, the “Privacy Rule”); and
WHEREAS, both Parties intend to protect the privacy and provide for the security of PHI disclosed to Business Associate pursuant to the terms of the Agreement, this BAA, HIPAA, and other applicable laws; and WHEREAS, this BAA is intended to apply to the Agreement and all other agreements and arrangements, pursuant to which or in connection with which Business Associate, at any time during the term of this BAA, furnishes services involving the use or disclosure of PHI and in such capacity is a business associate of Covered Entity (each such agreement or arrangement with an agent or subcontractor, an “Underlying Agreement”). This BAA supersedes, as of the Effective Date, any prior business associate agreement between the Parties and applies to all Underlying Agreements between Business Associate and any agent or subcontractor of Business Associate.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein and the continued provision of PHI by Covered Entity to Business Associate under the Agreement in reliance on this BAA, the Parties agree as follows:
1. Definitions. For purposes of this BAA, the Parties give the following meaning to each of the terms below. Any capitalized term used in this BAA but not otherwise defined has the meaning given to that term in the Privacy Rule or pertinent law.
A. “Affiliate” means a subsidiary or affiliate of Covered Entity that is, or has been, considered a covered entity, as defined by HIPAA.
B. “Business Day” means a day other than a Saturday, Sunday, or legal holiday under federal law.
C. “Breach” means the acquisition, access, use, or disclosure of PHI in a manner not permitted under the Privacy Rule, which compromises the security or privacy of the PHI, as defined in 45 CFR §164.402.
D. “Breach Notification Rule” means the portion of HIPAA set forth in Subpart D of 45 CFR Part 164.
E. “Damages” means claims, losses, liabilities, costs, fines, penalties, and other expenses (including, without limitation, reasonable attorneys’ fees).
F. “Data Aggregation” means, with respect to PHI created or received by Business Associate in its capacity as the “business associate” under HIPAA of Covered Entity, the combining of such PHI by Business Associate with the PHI received by Business Associate in its capacity as a business associate of one or more other “covered entity” under HIPAA, to permit data analyses that relate to the Health Care Operations (defined below) of the respective covered entities. The meaning of “data aggregation” in this BAA shall be consistent with the meaning given to that term in the Privacy Rule under 45 CFR § 164.501.
G. “Designated Record Set” has the meaning given to such term under the Privacy Rule, including 45 CFR §164.501.B.
H. “De-Identify” means to alter the PHI such that the resulting information meets the requirements described in 45 CFR §§164.514(a) and (b).
I. “Discover” and “Discovery” have the meanings given such terms in 45 CFR §164.410.
J. “Electronic PHI” means any PHI maintained in or transmitted by electronic media as defined in 45 CFR §160.103.
K. “Health Care Operations” has the meaning given to that term in 45 CFR §164.501.
L. “Health Information” has the meaning given to such term in 45 CFR §160.103.
M. “HHS” or “Secretary” means the U.S. Department of Health and Human Services.
N. “HITECH Act” means the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009, Public Law 111-005.
O. “Individual” has the same meaning given to that term in 45 CFR §§164.501 and 160.130 and includes a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
P. “Privacy Law” shall mean any applicable law or regulation relating to the privacy, security or confidentiality of PHI, including, without limitation, the HIPAA Rules, HIPAA, the HITECH Act, and (to the extent not pre-empted) State Privacy Laws.
Q. “Privacy Rule” means that portion of HIPAA set forth in 45 CFR Part 160 and Part 164, Subparts A and E.
R. “Protected Health Information” or “PHI” has the meaning given to the term “protected health information” in 45 CFR §§164.501 and 160.103, limited to the information created, maintained, transmitted, accessed, or received by Business Associate or any of its agents or subcontractors from, for, or on behalf of Covered Entity.
S. “Required By Law” has the meaning given to such term in 45 CFR §164.103, and shall be subject to any additional requirements created under the HIPAA Rules.
T. “Security Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.
U. “Security Rule” means the Security Standards for the Protection of Electronic Health Information provided in 45 CFR Part 160 & Part 164, Subparts A and C.
V. “Subcontractor” means an entity that creates, accesses, receives, maintains, or transmits PHI on behalf of or for Business Associate, as such term is defined in 45 CFR §160.103.
W. “Unsecured Protected Health Information” or “Unsecured PHI” means any “protected health information” as defined in 45 CFR §§164.501 and 160.103 that is not rendered unusable, unreadable or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the HHS Secretary in the guidance issued pursuant to the HITECH Act and codified at 42 USC §17932(h).
2. Use and Disclosure of PHI.
A. Except as otherwise provided in this BAA, Business Associate may use or disclose PHI as reasonably necessary to provide the services described in the Agreement to Covered Entity and to undertake other activities of Business Associate permitted or required of Business Associate by this BAA or as required by law.
B. Except as otherwise limited by this BAA or federal or state law, Covered Entity authorizes Business Associate to use the PHI in its possession for the proper management and administration of Business Associate’s business and to carry out its legal responsibilities. Business Associate may disclose PHI for its proper management and administration, provided that (i) the disclosures are required by law; or (ii) Business Associate obtains, in writing, prior to making any disclosure to a third party (a) reasonable assurances from this third party that the PHI will be held confidential as provided under this BAA and used or further disclosed only as required by law or for the purpose for which it was disclosed to this third party and (b) an agreement from this third party to notify Business Associate of any breaches, or suspected breaches, of the confidentiality of the PHI, to the extent it has knowledge of the breach or suspected breach, within the time period provided below in Sections 4 and 5.
C. Business Associate will not use or disclose PHI in a manner other than as provided in this BAA, as permitted under the Privacy Rule, or as required by law. Business Associate will use or disclose PHI, to the extent practicable, as a limited data set or limited to the minimum necessary amount of PHI to carry out the intended purpose of the use or disclosure, in accordance with Section 13405(b) of the HITECH Act (codified at 42 USC §17935(b)) and any of the act’s implementing regulations adopted by HHS, for each use or disclosure of PHI.
D. Upon request, Business Associate will make any of Covered Entity’s PHI available to Covered Entity that Business Associate or any of its agents or subcontractors have in their possession.
E. Business Associate may use PHI to report violations of law to appropriate federal and state authorities, consistent with 45 CFR §164.502(j)(1).
State of Ohio Department of Administrative Services Employee Population Health Management Program – RFP #SRC0000037427
On behalf of the Department of Administrative Services Rev.032924 03.29.24
3. Safeguards Against Misuse of PHI.
A. Business Associate will use appropriate safeguards to prevent the use or disclosure of PHI other than as provided by the Agreement or this BAA. Business Associate agrees to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of all PHI, including Electronic PHI, that it creates, receives, maintains, or transmits on behalf of Covered Entity. Business Associate agrees to take reasonable steps, including providing adequate training to its employees to ensure compliance with this BAA and to ensure that the actions or omissions of its employees or agents do not cause Business Associate to breach the terms of this BAA.
B. Business Associate will ensure that Business Associate:
(i) Utilizes the security controls outlined in NIST Special Publication 800-53 Rev. 4 that align with the appropriate safeguards under 45 CFR 164 Subpart C, including those identified as addressable;
(ii) Will comply with 74 FR19006 – Guidance Specifying the Technologies and Methodologies That Render PHI Unusable, Unreadable, or Indecipherable to Unauthorized Individuals for Purposes of the Breach Notification Requirements under Section 13402 of Title XIII (Health Information Technology for Economic and Clinical Health Act) of the American Recovery and Reinvestment Act of 2009; and
(iii) Will comply with State of Ohio IT Standard, ITS-SEC-01 Data Encryption and Cryptography for electronic PHI.
4. Reporting Disclosures of PHI and Security Incidents. Business Associate shall report to Covered Entity, in writing, any use or disclosure of PHI not authorized by this BAA or the Privacy Rule of which it Discovers or becomes aware or any Security Incident affecting Electronic PHI of Covered Entity. Business Associate shall report said event no later than three business days after Business Associate becomes aware of the event.
5. Reporting Breaches of Unsecured PHI. Business Associate will notify Covered Entity in writing of any suspected Breach or Breach of Unsecured PHI in accordance with the requirements set forth in 45 CFR §164.410, but in no case later than three business days after Discovery of any suspected Breach or Breach. Business Associate will reimburse Covered Entity for any costs incurred by it in complying with the requirements of Subpart D of 45 CFR §164 that are imposed on Covered Entity as a result of a Breach committed by Business Associate. Such costs include credit monitoring with a credit monitoring service approved by Covered Entity. The credit monitoring services provided shall be comparable to services provided by credit monitoring service providers or identity theft protection service providers with whom the State of Ohio presently holds a contract.
A. Once a Breach, suspected Breach, or Security Incident (collectively, “Incident”) has occurred, Business Associate must notify the Covered Entity and provide Covered Entity with the information that is known at that time, including the nature of the Incident. Business Associate will immediately investigate the Incident and provide Covered Entity with a written investigative report within three business days. The report shall include the following, at a minimum:
(i) The date and time each Incident occurred;
(ii) The date and time each Incident was Discovered;
(iii) The data elements involved, the extent of the data involved, and identification of affected individuals, if applicable;
(iv) A description of the unauthorized persons known or reasonably believed to have improperly used or disclosed PHI or to have been responsible for the Incident;
(v) If applicable, a description of where the PHI was believed to have been improperly transmitted, sent, or utilized;
(vi) A description of the probable causes of the Incident;
(vii) A description of the proposed plan for preventing similar Incidents, including ongoing risk remediation plan approval;
(viii) A statement regarding whether federal or state laws require notification of the breach to the impacted individuals; and
(ix) Such other information as Covered Entity may reasonably request.
B. Any notification to Business Associate made pursuant to this section shall be sent to the following: the Covered Entity’s Chief Privacy Officer, if the Covered Entity is an Ohio agency other than the Ohio Department of Administrative Services (DAS); the State of Ohio Privacy Officer at State.Privacy.Officer@das.ohio.gov; and the DAS Office of Risk Management at https://das.ohio.gov/riskmanagement.
6. Mitigation of Disclosures of PHI. Business Associate will take reasonable measures to mitigate, to the extent practicable, any harmful effect known to Business Associate of any use or disclosure of PHI by Business Associate or its agents or subcontractors in violation of the requirements of this BAA. Business Associate agrees, to the extent practical, to coordinate with Covered Entity to determine specific actions that will be required of the Business Associate for mitigation of the Breach. These actions may include notification to the appropriate individuals, entities, or other authorities. Notification or communication to any media outlet must be approved, in writing, by Covered Entity before any such communication is released. Business Associate will report its mitigation activity to Covered Entity and preserve all relevant records and evidence. Costs associated with Notification or communication to appropriate individuals, entities, or other authorities will be at Business Associate’s expense.
7. Agreements with Agents or Subcontractors. Business Associate will ensure that any of its agents or subcontractors that have access to, or to which Business Associate provides PHI, agree in writing to the restrictions and conditions concerning the uses and disclosures of PHI contained in this BAA. Business Associate agrees to implement reasonable and appropriate safeguards to protect any PHI, including Electronic PHI, that it or any of its agents or subcontractors create, receive, maintain, or transmit on behalf of itself or, through the Business Associate, Covered Entity. Business Associate, or any agent or subcontractor, shall notify Covered Entity of all subcontracts and agreements relating to the Agreement or this BAA, where the agent or subcontractor of Business Associate receives PHI as described in section 1(Q) of this BAA. Such notification shall occur within 10 calendar days of the execution of the subcontract by providing written notice to Covered Entity. Business Associate shall ensure that all subcontracts and agreements involving PHI provide the same level of privacy and security as this BAA.
8. Audit Report. Upon request, Business Associate, or any agent or subcontractor of Business Associate, will provide Covered Entity with a copy of its most recent independent HIPAA compliance report (AT-C 315), HITRUST certification, or other mutually agreed upon independent standards-based third-party audit report. Except as required by law, Covered Entity agrees not to re-disclose Business Associate’s or upstream Business Associate’s audit report. The audit report shall be provided without unreasonable delay.
9. Access to PHI by Individuals.
A. Upon request, Business Associate agrees to furnish Covered Entity with copies of the PHI maintained by Business Associate in a Designated Record Set within five Business Days of receiving the request, to enable Covered Entity to respond to an Individual’s request for access to PHI under 45 CFR §164.524.
B. In the event any Individual requests access to the Individual’s PHI directly from Business Associate, Business Associate shall notify Covered Entity of such request as soon as practicable, but in no event more than five Business Days after receiving such request and will forward that request to Covered Entity. Any disclosure of, or decision not to disclose, the PHI requested by an Individual, and compliance with the requirements applicable to an Individual’s right to obtain access to PHI, shall be the sole responsibility of Covered Entity.
10. Amendment of PHI.
A. Upon request and instruction from Covered Entity, Business Associate will amend PHI or a record about an Individual in a Designated Record Set that is maintained by, or otherwise within the possession or control of, Business Associate as directed by Covered Entity in accordance with the procedures established by 45 CFR §164.526. Business Associate will complete any request by Covered Entity to amend such information within 15 Business Days of Covered Entity’s request.
B. If any Individual requests that Business Associate amend such Individual’s PHI or record in a Designated Record Set, Business Associate shall notify Covered Entity of such request as soon as practicable, but in no event more than five Business Days after receiving such request and will forward this request to Covered Entity. Any amendment of or decision not to amend the PHI or record as requested by an Individual, and compliance with the requirements applicable to an Individual’s right to request an amendment of PHI, will be the sole responsibility of Covered Entity.
11. Accounting of Disclosures.
A. Business Associate will document any disclosures of PHI made by it to account for such disclosures as required by 45 CFR §164.528(a). Business Associate also will make available information related to such disclosures as would be required for Covered Entity to respond to a request for an accounting of disclosures in accordance with 45 CFR §164.528. At a minimum, Business Associate will furnish Covered Entity with the following information regarding any covered disclosures by Business Associate:
(i) The date of disclosure of PHI;
(ii) The name of the entity or person who received PHI, and, if known, the address of such entity or person;
(iii) A brief description of the PHI disclosed; and
(iv) A brief statement of the purpose of the disclosure which includes the basis for such disclosure.
B. Business Associate will furnish to Covered Entity the information collected in accordance with this Section 11 within five Business Days after written request by Covered Entity, to permit Covered Entity to make an accounting of disclosures as required by 45 CFR §164.528, or in the event that Covered Entity elects to provide an Individual with a list of its business associates, Business Associate will provide an accounting of its disclosures of PHI upon request of the Individual, if and to the extent that such accounting is required under the HITECH Act or under HHS regulations adopted in connection with the HITECH Act.
C. In the event an Individual delivers the initial request for an accounting directly to Business Associate, Business Associate shall notify Covered Entity of such request as soon as practicable, but in no event more than five Business Days after receiving such request and will forward such request to Covered Entity.
12. Availability of Books and Records. Business Associate will make available its internal practices, books, agreements, records, and policies and procedures relating to the use and disclosure of PHI, upon request, to the Secretary of HHS for purposes of determining Covered Entity’s and Business Associate’s compliance with HIPAA and this BAA. From time to time upon reasonable notice and during business hours, Covered Entity may inspect the relevant facilities, systems, books, and records of Business Associate to monitor compliance with this BAA.
13. Responsibilities of Covered Entity. With regard to the use and/or disclosure of PHI by Business Associate, Covered Entity agrees to:
A. Notify Business Associate of any limitation(s) in its notice of privacy practices in accordance with 45 CFR §164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI;
B. Notify Business Associate of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of PHI;
C. Notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR §164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI;
D. Not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity, except for data aggregation or management and administrative activities of Business Associate.
14. Data Ownership. Business Associate’s data stewardship does not confer data ownership rights on Business Associate with respect to any data shared with it under the Agreement, including any and all forms thereof.
15. Term and Termination.
A. This BAA will become effective as of the date of the last signature below and shall terminate on the earliest of: (i) the date all obligations of the Parties have been met under the Agreement and under this BAA; (ii) termination of this BAA as authorized in section or Section 23; or (iii) termination upon mutual written agreement of the Parties. If it is infeasible to return or destroy PHI upon termination of this BAA, the protections of this BAA shall be extended and the terms of this BAA will survive with respect to such PHI.
B. Covered Entity may immediately terminate this BAA if Covered Entity determines that Business Associate has breached a material term of this BAA. Upon any breach of this BAA by Business Associate, Covered Entity may, in the alternative, suspend the BAA until such time that Covered Entity cures the breach. If Covered Entity elects to suspend the BAA, Covered Entity shall provide written notice of the suspension to Business Associate and provide Business Associate with a date by which the breach must be cured. Covered Entity may report the problem to the Secretary of HHS if termination of this BAA is not feasible.
C. Upon termination of the Agreement or this BAA for any reason, all PHI maintained by Business Associate must be returned to Covered Entity or destroyed by Business Associate. Business Associate will not retain any copies of such information. This provision also applies to PHI in the possession of Business Associate’s agents and subcontractors. If return or destruction of the PHI is not feasible, in Business Associate’s reasonable judgment, Business Associate will furnish Covered Entity with notification, in writing, of the conditions that make return or destruction infeasible. Upon mutual agreement of the Parties that return or destruction of the PHI is infeasible, Business Associate will extend the protections of this BAA to such information for as long as Business Associate retains such information and will limit further uses and disclosures to those purposes that make the return or destruction of the information not feasible. Section 15(C) will survive the termination of this BAA.
16. Insurance; Indemnification; Remedies.
A. Business Associate agrees to obtain and maintain during the term of this BAA, and for so long as Business Associate maintains PHI, cyber and privacy liability insurance with minimum policy limits of $3,000,000.00 per claim. Such insurance will cover claims based on any one or more of the following: (i) HIPAA Breach resulting from the actions or inactions of Business Associate, its employees, or agents; (ii) violation of this BAA by Business Associate; (iii) any negligent, willful or improper use or disclosure of PHI by Business Associate or any subcontractor; or (iv) violation of any Privacy Law. Such insurance shall be on a claims made basis with tail coverage, or on an occurrence basis. A copy of such policy or a certificate evidencing the policy shall be provided to Covered Entity upon request.
B. Business Associate shall indemnify and hold harmless Covered Entity and its officers, directors, managers, members, employees, and agents, from and against any and all Damages incurred as a result of, or arising directly or indirectly out of or in connection with:
(i) any breach of this BAA by Business Associate; (ii) any negligent, willful, or improper use or disclosure of PHI by Business Associate or any agent or subcontractor of Business Associate; (iii) any violation of any Privacy Law by Business Associate or any agent or subcontractor of Business Associate; or (iv) any Breach, suspected Breach, or Security Incident that arise out of the acts or omissions of Business Associate or any agent or subcontractor of Business Associate.
C. Business Associate acknowledges and stipulates that its unauthorized use or disclosure of PHI would cause irreparable harm to Covered Entity, and in such event, Covered Entity shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction in Ohio, either in law or in equity, to obtain Damages and injunctive relief, together with the right to recover from Business Associate the costs, including reasonable attorneys’ fees, for any such breach of the terms and conditions of this BAA or any such unauthorized use or disclosure.
D. To the extent that Business Associate limits, or has limited, its liability, whether with a maximum recovery for direct damages, indemnification or hold harmless obligations of Covered Entity, a disclaimer against any consequential, indirect or punitive damages, or other limitations, all limitations shall exclude Damages to Covered Entity arising from (i) Business Associate’s, or any agent’s or subcontractor’s of Business Associate’s, breach of this BAA or (ii) the unauthorized use or disclosure of PHI by Business Associate or any agent or subcontractor of Business Associate.
17. Effect of BAA.
A. This BAA is a part of and subject to the terms of the Agreement, except that to the extent any terms of this BAA conflict with any term of the Agreement, the terms of this BAA will govern.
B. Except as expressly stated in this BAA or as provided by law, this BAA will not create any rights in favor of any third party.
18. Regulatory References. A reference in this BAA to a section in HIPAA means the section as in effect or as amended at the time.
19. Notices. Except as provided in Section 5, all notices, requests, demands or other communications to be given under this BAA to a Party will be made either via first class mail, registered or certified or express courier, or electronic mail to the Party’s address given below:
A. If to Covered Entity, to: Attn: Greg Pawlack T: 1-614-466-6205 E: gregory.pawlack@das.ohio.gov
B. If to Business Associate, to: Attn:
T:
E:
20. Amendments and Waiver. This BAA may not be modified, nor will any provision be waived or amended, except in writing duly signed by authorized representatives of the Parties. A waiver concerning one event shall not be construed as continuing, or as a bar to, or waiver of any right or remedy as to subsequent events.
21. Survival of Terms. Business Associate’s obligations to safeguard the confidentiality and security of PHI imposed herein shall survive the termination of the Agreement and this BAA, and Business Associate shall protect the PHI obtained pursuant to the Agreement under the same terms and conditions provided herein until such time as Business Associate has lawfully disposed of the PHI in accordance with all federal and state laws and regulations. The rights of the Covered Entity shall survive the termination of the Agreement, this BAA, and any Underlying Agreement(s).
22. Independent Contractors. Business Associate is retained by Covered Entity as an independent contractor and not as an agent. Neither the Agreement, any Underlying Agreement(s), nor the provisions of this BAA are intended to, or shall be construed to, create any partnership, joint venture, agency or employment relationship between Covered Entity and Business Associate or between any Party and the employees, agents or independent contractors of the other Party.
23. HITECH Act Compliance. The Parties acknowledge that the HITECH Act includes significant changes to the Privacy Rule and the Security Rule. The privacy subtitle of the HITECH Act sets forth provisions that significantly change the requirements for business associates and the agreements between business associates and covered entities under HIPAA, and these changes may be further clarified in forthcoming regulations and guidance. Each Party agrees to comply with the applicable provisions of the HITECH Act and any HHS regulations issued with respect to the HITECH Act. The Parties also agree to negotiate in good faith to modify this BAA as reasonably necessary to comply with the HITECH Act and its regulations as they become effective, but, in the event that the Parties are unable to reach an agreement on such a modification, each Party will have the right to terminate this BAA upon 30 days’ prior written notice to the other Party.
(signatures on next page)
NOW THEREFORE, the Parties have executed this BAA on the last day and year set forth below.
COVERED ENTITY BUSINESS ASSOCIATE
| By: | By: |
| Name: | Name: |
Title: Title:
Date: Date:
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