Business Associate AGREEMENT
This Business Associate Agreement ("Agreement") is entered into as of the "Effective Date", as described in the SOW. If the SOW has not been executed, then the Effective Date shall be determined as the first use of any Service of CareTree by the Business Associate. This Agreement is by and between CareTree, Inc., an Illinois corporation ("Business Associate") and "Covered Entity", as described in the SOW or as originally registered as within the CareTree software service.
RECITALS
A.
Covered
Entity and Business Associate are parties to an agreement or arrangement
pursuant to which Business Associate performs certain services for Covered
Entity.
B.
In
connection with the performance of its services, Business Associate may receive
from, or create or receive on behalf of Covered Entity health information that
is considered PHI (as defined below).
C.
To the extent that such PHI is shared between the
parties, this Agreement shall apply and shall set forth the party's obligations
with respect to such PHI.
D.
The provisions
of this Agreement shall become binding on the parties beginning on the date on
which PHI is first shared between the parties and shall terminate in accordance
with the terms of this Agreement.
TERMS
1. Definitions
Terms used, but not otherwise defined, in this Agreement shall have the
same meaning as those terms in the HIPAA Rules (as defined below), the HITECH
Standards (as defined below) or any future regulations promulgated or guidance
issued by the Secretary (as defined below) thereunder.
a)
Breach. "Breach" shall have the same meaning as the
term "breach" at 45 C.F.R. § 164.402.
b)
Electronic Health Record. "Electronic Health Record" shall mean an
electronic record of health-related information on an Individual (as defined
below) that is created, gathered, managed, and consulted by authorized health
care clinicians and staff.
c)
Electronic PHI. "Electronic PHI" shall have the same
meaning as the term electronic PHI at 45 C.F.R. § 160.103, limited to the
information created or received by Business Associate from or on behalf of
Covered Entity.
d)
HIPAA. "HIPAA" shall mean the Health Insurance
Portability and Accountability Act of 1996, as amended, and the implementation
regulations thereunder, including without limitation the HIPAA Rules (as
defined below) and the HITECH Standards (as defined below), and all future
regulations promulgated thereunder.
e)
HIPAA Rules. "HIPAA Rules" means the Privacy Rule (as
defined below) and the Security Rule (as defined below).
f)
HITECH Standards. "HITECH Standards" means Subtitle D of the
Health Information Technology for Economic and Clinical Health Act ("HITECH"),
found at Title XIII of the American Recovery and Reinvestment Act of 2009, and
any regulations promulgated thereunder, including all amendments to the HIPAA
Rules.
g)
Individual. "Individual" shall have the same meaning
as the term "individual" at 45 C.F.R. § 160.103, and any amendments thereto,
and shall include a person who qualifies as a personal representative in
accordance with 45 C.F.R. § 164.502(g).
h)
Privacy Rule. "Privacy Rule" means the Standards for
Privacy of Individually Identifiable Health Information at 45 C.F.R. Parts 160
and 164.
i)
Protected Health Information. "Protected
Health Information" or "PHI" shall have the same meaning as the term "protected
health information" at 45 C.F.R. § 160.103, and any amendments thereto, limited
to the information created or received by Business Associate from or on behalf
of Covered Entity.
j)
Required By Law. "Required By Law shall" have the same
meaning as the term "required by law" at 45 C.F.R. § 164.103.
k)
Secretary. "Secretary" shall mean the Secretary of
the Department of Health and Human Services or his/her designee.
l)
Security Incident. "Security Incident" shall have the same
meaning as the term "security incident" at 45 C.F.R. § 164.304.
m)
Security Rule. "Security Rule" shall mean the Security
Standards for the Protection of Electronic PHI at 45 C.F.R. Parts 160, 162, and
164.
n)
Unsecured PHI.
"Unsecured PHI" shall have the same meaning as the term "unsecured
protected health information" at 45 C.F.R. § 164.402.
2. Relationship
of Parties
In the performance of the work, duties and obligations described in this
Agreement or under any other agreement between the parties, the parties
acknowledge and agree that each party is at all times acting and performing as
an independent contractor and at no time shall the relationship between the
parties be construed as a partnership, joint venture, employment,
principal/agent relationship, or master/servant relationship.
3. Ownership
of PHI
Business Associate acknowledges that all right, title
and interest in and to any PHI furnished to Business Associate vests solely and
exclusively with Covered Entity or the Individual to whom such PHI relates.
4. Obligations
and Activities of Business Associate
a)
Business Associate agrees to not use or disclose
PHI other than as permitted or required by this Agreement, any underlying
agreement between the parties, or as Required By Law.
b)
Business Associate will make reasonable efforts, to
the extent practicable, to limit requests for and the use and disclosure of PHI
to a Limited Data Set (as defined in 45 C.F.R. § 164.514(e)(2)) or, if
needed by Business Associate, to the minimum necessary PHI to accomplish the
intended purpose of such use, disclosure or request, and as applicable, in
accordance with the regulations and guidance issued by the Secretary on what
constitutes the minimum necessary for Business Associate to perform its
obligations to Covered Entity under this Agreement, any underlying agreement,
or as Required By Law.
c)
Business Associate agrees to use appropriate
safeguards to prevent the use or disclosure of PHI other than as provided for
by this Agreement.
d)
Business Associate agrees to implement
administrative, physical and technical safeguards that reasonably and
appropriately protect the confidentiality, integrity and availability of
Electronic PHI that it creates, receives, maintains or transmits on behalf of
Covered Entity. Business Associate
shall comply with the applicable requirements of the Security Rule in the same
manner such provisions apply to Covered Entity.
e)
Business Associate agrees to mitigate, to the
extent practicable, any harmful effect that is known to Business Associate of a
use or disclosure of PHI by Business Associate in violation of the requirements
of this Agreement.
f)
Business Associate agrees to report to Covered
Entity any use or disclosure of PHI not provided for by this Agreement of which
it becomes aware. To the extent that Business Associate creates, receives,
maintains or transmits Electronic PHI, Business Associate agrees to report as
soon as practicable to Covered Entity any Security Incident, as determined by
Business Associate, involving PHI of which Business Associate becomes aware. Notwithstanding the
foregoing, Business Associate and Covered Entity acknowledge the ongoing
existence and occurrence of attempted but unsuccessful Security Incidents that
are trivial in nature, such as pings and port scans, and Covered Entity
acknowledges and agrees that no additional notification to Covered Entity of
such unsuccessful Security Incidents is required. However, to the extent that Business
Associate becomes aware of an unusually high number of such unsuccessful
Security Incidents due to the repeated acts of a single party, Business
Associate shall notify Covered Entity of these attempts and provide the name,
if available, of said party. At
the request of Covered Entity, Business Associate shall identify the date of
the Security Incident, the scope of the Security Incident, Business Associate's
response to the Security Incident, and the identification of the party
responsible for causing the Security Incident, if known.
g)
Following Business Associate's
discovery of a Breach of Unsecured PHI, Business Associate shall notify Covered
Entity of the Breach without unreasonable delay, and in no event later than ten
(10) calendar days after Business Associate, or any of its employees or agents,
discovered the Breach. Such notification
shall include, to the extent possible, the identification of each Individual
whose Unsecured PHI has been, or is reasonably believed by Business Associate
to have been, accessed, acquired, used, or disclosed during the Breach and any
other information available to Business Associate about the Breach which is
required to be included in the notification of the Breach provided to the
Individual in accordance with 45 C.F.R. § 164.404(c). A Breach of Unsecured PHI shall be treated
as discovered as of the first day on which such Breach is known to Business
Associate or should have be known to Business Associate by exercising
reasonable diligence.
h)
In accordance with 45 C.F.R. §§ 164.308(b)(2)
and 164.502(e)(1)(ii), Business Associate agrees to ensure that any
subcontractors that create, receive, maintain, or transmit PHI on behalf of
Business Associate agree in writing to the same restrictions and conditions
that apply through this Agreement to Business Associate with respect to such
information. Moreover, Business Associate agrees to ensure any such agent or
subcontractor agrees to implement reasonable and appropriate safeguards to
protect Covered Entity's Electronic PHI.
i)
Business Associate shall provide access, at the
request of Covered Entity, and in a time and manner mutually acceptable to
Business Associate and Covered Entity, to PHI in a Designated Record Set to
Covered Entity, or, as directed by Covered Entity, to an Individual or another
person properly designated by the Individual, in order to meet the requirements
under 45 C.F.R. § 164.524. If Business
Associate maintains PHI electronically in a Designated Record Set and if the
Individual requests an electronic copy of such information, Business Associate
must provide Covered Entity, or the Individual or person properly designated by
the Individual, as directed by Covered Entity, access to the PHI in the
electronic form and format requested by the Individual, if it is readily
producible in such form and format; or, if not, in a readable electronic form
and format as agreed to by Covered Entity and the Individual. Any fee that Business Associate may charge
for such electronic copy shall not be greater than Business Associates labor
and supply costs in responding to the request.
j)
Business Associate agrees to make any amendment(s)
to PHI in its possession contained in a Designated Record Set that Covered
Entity directs or agrees to pursuant to 45 C.F.R. § 164.526 at the request of
Covered Entity or an Individual, and in a time and manner mutually acceptable
to Business Associate and Covered Entity.
k)
Business Associate agrees to document such
disclosures of PHI and information related to such disclosures as would be
required for Covered Entity to respond to a request by an Individual for an
accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. As of the compliance date set forth in the regulations promulgated under
HITECH or as otherwise determined by the Secretary, in addition to the
accounting of disclosure obligations required under 45 C.F.R. § 164.528,
Business Associate shall account for all disclosures of PHI made through an
Electronic Health Record in accordance with the HITECH Standards and any future
regulations promulgated thereunder.
l)
Within ten (10) business days (or such other date
that Business Associate and Covered Entity may reasonably agree upon) of
receiving written notice from Covered Entity that Covered Entity has received a
request for an accounting of disclosures of PHI, Business Associate agrees to
provide to Covered Entity information collected to permit Covered Entity to
make the accounting required in accordance with 45 C.F.R. § 164.528.
m)
Business Associate shall make its internal
practices, books, and records, including policies and procedures, relating to
the use and disclosure of PHI received from, or created or received by Business
Associate on behalf of Covered Entity, available to the Secretary for purposes
of determining Covered Entity's or Business Associate's compliance with the
Privacy Rule.
n)
To the extent Business Associate is to carry out
Covered Entity's obligations under the Privacy Rule, Business Associate shall
comply with the requirements of the Privacy Rule that apply to Covered Entity
in the performance of such delegated obligation.
5. General
Use and Disclosure Provisions
Except as otherwise limited in this
Agreement:
a)
Business Associate reserves the right to use
PHI for the proper management and administration of Business Associate and to
carry out the legal responsibilities of Business Associate.
b)
Except
as otherwise limited in this Agreement, Business Associate may use Protected Health Information to
provide Data Aggregation services to Covered Entity as permitted by 45 C.F.R.
164.504(e)(2)(i)(B) and to create de-identified data
as defined by 45 C.F.R. 164.514 and use and
disclose the de-identified data for Business Associate's own purposes.
c)
Business Associate may use or disclose PHI
to perform functions, activities, or services for, or on behalf of, Covered
Entity provided that such use or disclosure would not violate the Privacy Rule
if done by Covered Entity.
d)
Business Associate may disclose PHI in its
possession for the proper management and administration of Business Associate,
provided that disclosures are Required by Law, or Business Associate obtains
reasonable assurances from the third party to whom the information is disclosed
that such PHI will be held confidentially and used or further disclosed only as
Required By Law or for the purpose for which it was disclosed to the third
party, and the third party notifies Business Associate of any instances of
which it is aware in which the confidentiality of the PHI has been breached.
6. Obligations
of Covered Entity
a)
Covered Entity shall notify Business Associate in writing
of any limitation(s) in its notice of privacy practices, to the extent that
such limitation may affect Business Associate's use or disclosure of PHI.
b)
Covered Entity shall notify Business Associate, in
writing and in a timely manner, of any change in, or revocation of, permission
by an Individual to use or disclose PHI, to the extent that such change may
affect Business Associate's permitted or required use or disclosure of PHI.
c)
Covered Entity shall notify Business Associate, in
writing and in a timely manner, of any restriction to the use and/or disclosure
of PHI, which Covered Entity has agreed to in accordance with 45 C.F.R.
164.522, to the extent that such restriction may affect Business Associate's
use or disclosure of PHI.
d)
Covered Entity shall have entered into
"Business Associate Agreements" with any third parties (e.g., case managers,
brokers or third party administrators) to which
Covered Entity directs and authorizes Business Associate to disclose PHI.
7. Permissible
Requests by Covered Entity
Covered Entity
shall not request Business Associate to use or disclose PHI in any manner that
would not be permissible under the Privacy Rule or the Security Rule if done by
Covered Entity.
8. Term
and Termination
a)
Term. The
term of this Agreement shall commence on the Effective Date, and shall
terminate when Business Associate ceases providing services to or for Covered
Entity that involves creating, receiving, maintaining or transmitting PHI on
behalf of Covered Entity.
b)
Termination for Cause. Upon Covered Entity's knowledge of a material
breach of this Agreement by Business Associate, Covered Entity shall either:
i)
Provide an opportunity for Business Associate to
cure the breach or end the violation and terminate this Agreement if Business Associate
does not cure the breach or end the violation within the time specified by
Covered Entity; or
ii)
Immediately terminate this Agreement if Business
Associate has breached a material term of this Agreement and cure is not
possible.
Business Associate
shall ensure that it maintains the termination rights in this Section in any
agreement it enters into with a subcontractor pursuant to Section 4(h) hereof.
c)
Effect of Termination.
i)
Except as provided in paragraph (ii) of this
Section, upon termination of this Agreement, for any reason, Business Associate
shall return or destroy all PHI received from Covered Entity, or created or
received by Business Associate on behalf of Covered Entity. This provision
shall apply to PHI that is in the possession of subcontractors or agents of
Business Associate. Business Associate shall not retain copies of the PHI.
ii)
In the event that Business Associate determines
that returning or destroying the PHI is not feasible, Business Associate shall
provide to Covered Entity notification of the conditions that make return or
destruction not feasible. Upon determination that return or destruction of PHI
is not feasible, Business Associate shall extend the protections of this
Agreement to such PHI and limit further uses and disclosures of such PHI to
those purposes that make the return or destruction not feasible, for so long as
Business Associate maintains such PHI.
9. Insurance;
Indemnification; Disclaimer of Warranties; and Limitation of Liability
a) Insurance. Business Associate agrees to secure and maintain during this Agreement, a policy of insurance coverage, with limits of $1,000.000.00 each claim and annual aggregate.
b)
Indemnification. Business Associate shall defend, indemnify
and hold harmless Covered Entity and its officers, directors, agents and
employees (the "Covered Entity Parties") from and against any and all third
party claims, liabilities, demands, damages, losses, costs or expenses,
including, without limitation, reasonable attorneys' fees and expenses, incurred
by any Covered Entity Parties directly arising from or directly related to
Business Associate's acts or omissions in its use or disclosure of PHI, or
breach of its obligations related to PHI set forth in this Agreement, except to
the extent such losses are caused by the negligent acts or omissions or
willful misconduct of any Covered Entity
Parties or breach of this Agreement by Covered Entity. Notwithstanding anything to the contrary
herein, Business Associate's indemnification obligation to the Covered Entity
Parties hereunder shall be limited to direct damages only and in no event shall
Business Associate be liable to Covered Entity for any incidental, special,
consequential, or punitive damages, including without limitation, lost profits
or revenue, as a result of the performance of, or any default in the
performance of Business Associate's obligations under this Agreement.
c)
Disclaimer of Warranties. COVERED ENTITY
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT AND/OR
ANY SERVICE USED BY BUSINESS ASSOCIATE INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES
ARE PROVIDED BY COVERED ENTITY ON A AN "AS-IS" BASIS. COVERD ENTITY DOES NOT
REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS (INCLUDING, BUT
NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY
FORM) PROVIDED BY COVERED ENTITY IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL
NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR
CONTINUOUSLY AVAILABLE. COVERED ENTITY DOES NOT REPRESENT, WARRANT, OR COVENANT
THAT THE SERVICE AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR
TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING BUT NOT LIMITED TO, MINOR OR
COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY
OR FEATURES) WILL BE CORRECTED. COVERED ENTITY IS NOT RESPONSIBLE FOR ANY
DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER
OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY
TO ACCESS OR GE ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT
THE SERVICES ARE DEPENDENT ON.
d)
Limitation of Liability. COVERED ENTITY'S
TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW SHALL IN NO EVENT EXCEED THE FEES
PAYABLE BY BUSINESS ASSOCIATE TO COVERED ENTITY FOR THE SERVICES PROVIDED UNDER
THE APPLICABLE SOW THAT GAVE RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH
PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL COVERED ENTITY BE LIABLE
FOR ANY INDIRECT, INDICENTIAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE
DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA, AND BUSINESS) EVEN
IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Miscellaneous
a) Regulatory References. A reference in this Agreement to a section in the Privacy Rule or the Security Rule means the section as in effect or as amended and for which compliance is required.
b) Amendment. Business Associate agrees that Covered Entity may make modifications of or amendments to this Agreement and/or SOW. These shall be effective unless such modification or amendment is not allowed as a part of the SOW and in writing and signed by both parties hereto. Any prior agreements or representations, either written or oral, relating to the subject matter of this Agreement are of no force or effect. Notwithstanding the foregoing, the parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to ensure compliance with such developments. The parties specifically agree to take such action as may be necessary from time to time for the parties to comply with the requirements of HIPAA. Covered Entity shall provide notice to Business Associate to the extent that any final regulation or amendment to final regulations promulgated by the Secretary under HITECH requires an amendment to this Agreement to comply with HIPAA. The parties agree to negotiate an amendment to the Agreement in good faith; however, either party may terminate this Agreement upon ninety (90) days written notice to the other party if the parties are unable to reach an agreement.
c)
Survival. The respective rights and obligations of
Business Associate under Section 8 of this Agreement shall survive the
termination of this Agreement, unless expressly stated otherwise.
d)
Interpretation. Any ambiguity in this Agreement shall be
resolved to permit Covered Entity and Business Associate to comply with HIPAA.
e)
Notice. Any notice, report or other communication
required under this Agreement shall be in writing and shall be delivered
personally, telegraphed, emailed, sent by facsimile transmission, or sent by
f)
Governing Law. The rights, duties and obligations of the
parties to this Agreement and the validity, interpretation, performance and
legal effect of this Agreement shall be governed and determined by applicable
federal law with respect to the Privacy Rule and the Security Rule and
otherwise by the laws of the State of Illinois.
g)
Counterparts. This Agreement may be executed in one or more
original counterparts and will become operative when each party has executed
and delivered at least one counterpart.
Each original counterpart will be deemed to be an original for all
purposes, and all counterparts will together constitute one instrument.
h)
Signatures.
This Agreement, to the extent signed and delivered by means of a
facsimile machine or electronic mail, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. The parties agree
that an electronic signature is the legal equivalent of its manual signature on
this Agreement. The parties agree that no certification authority or other
third party verification is necessary to validate its electronic signature and
that the lack of such certification of third party verification will not in any
way affect the enforceability of the parties' electronic signature or any
resulting agreement between Covered Entity and Business Associate. Unless
otherwise noted, signature of the SOW shall also serve as signature or
agreement to this Agreement. If the SOW
does not exist, then use of Covered Entity services by the Business Associate
shall be deemed signature or agreement to this Agreement.