Please Note: the Only Purpose of This Sample Business Associate Agreement Is to Serve

Please Note: The only purpose of this Sample Business Associate Agreement is to serve as an informational example of the contract terms that are required by HIPAA, HITECH and the Omnibus Final Rule. It is not intended as a “one size fits all” contract. It is notlegal advice, nor should it substitute for legal advice. Seek the advice of an attorney before using this sample contract to develop a business associate agreement that meets your particular situation and needs.

Highlighted text serves as instructions/recommendations for completion of the Business Associate Agreement. Once complete, the highlighted text should be removed.

BUSINESS ASSOCIATE AGREEMENT

This BUSINESS ASSOCIATE AGREEMENT is entered into as of ______, 201______, (the “Effective Date”) by and between ______(“Covered Entity”) and______(“Business Associate”).

Covered Entity is a ______[insert brief description of the practice]and will make available or transfer to Business Associate certain Protected Health Information in conjunction with services that Business Associate is providing to Covered Entity pursuant to the ______[insert title of the contract that creates the business associate relationship] entered into by the parties effective as of ______[insert effective date of the contract] (the “Services Agreement”).

Business Associate provides services to Covered Entity pursuant to the Services Agreement. Business Associate will perform certain functions and/or activities on behalf of the Covered Entity involving the creation, receipt, maintenance, transmission and/or disclosure of Protected Health Information.

Covered Entity and Business Associate enter into this Agreement in compliance withthe Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing rules and regulations, and the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) of the American Recovery and Reinvestment Act of 2009 (“ARRA”) and its implementing rules and regulations, each as may be amended from time to time, including, but not limited to, those regulatory amendments of the Department of Health and Human Services published at 78 Fed. Reg. 5566 (Jan. 25, 2013).

The parties agree that the Protected Health Informationtransferred or made available to Business Associate by Covered Entity may be used or disclosed only in accordance with this Agreement and applicable provisions of the HIPAA Rules.

1.Definitions

Capitalized terms used, but not otherwise defined, in this Agreement, shall have the meanings given those terms by the applicable definitions in the HIPAA Privacy Rule and the HIPAA Security Rule, as amended by HITECH.

1.1Catch-all definition:

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

1.2Specific definitions:

(a) Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in referenceto the party to this agreement, shall mean [Insert Name of Business Associate];

(b) Covered Entity. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to thisagreement, shall mean [Insert Name of Covered Entity];

(c) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification,and Enforcement Rules at 45 CFR Part 160 and Part 164.

2.Obligations and Activities of Business Associate

Business Associate agrees to:

2.1.Not use or disclose Protected Health Information other than as permitted or required by the Agreement or as required by law;

2.2.Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information, to prevent use or disclosure of Protected Health Information other than as provided for by the Agreement;

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

2.4.Report to Covered Entity, in writing, any use or disclosure of Protected Health Information not provided for by the Agreement of which it becomes aware, including breaches of unsecured Protected Health Information as required at 45 CFR 164.410, and any security incident of which it becomes aware. This report will be made with _____ business days of discovery and shall include all information necessary for the Covered Entity to make any notifications required under the HIPAA Rules and applicable laws;

[The parties may wish to add additional specificity regarding the breach notification obligations of the business associate, such as a different timeframe (not to exceed 60 days) for the business associate to report a potential breach to the covered entity and/or whether the business associate will handle breach notifications to individuals, the HHS Office for Civil Rights (OCR), and potentially the media, on behalf of the covered entity.]

2.5.In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;

2.6.Make available Protected Health Information in a designated record set within ______business daysto the [Choose either “covered entity” or “individual or the individual’s designee”] as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524. Business Associate will forward to Covered Entity any requests from an individual for Protected Health Information within ______business days of receipt of same;

[The parties may wish to add additional specificity regarding how the business associate will respond to a request for access that the business associate receives directly from the individual (such as whether and in what time and manner a business associate is to provide the requested access or whether the business associatewill forward the individual’s request to the covered entity to fulfill) and the timeframefor the business associate to provide the information to the covered entity. HIPAA requires a covered entity to act on a request for records within 30 days from the receipt of the request. Some state laws are more stringent. For example, Tennessee requires the request to be processed within 10 days. Take this into account when determining the number of days for the business associate to respond.]

2.7.Make any amendment(s) to Protected Health Information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526. The Business Associate also shall forward to the Covered Entity for action, within _____business days of the Business Associate’s receipt, any request for amendment to Protected Health Information in a designated record set that the Business Associate receives from an individual;

[The parties may wish to add additional specificity regarding how the business associate will respond to a request for amendment that the business associate receives directly from the individual (such as whether and in what time and manner a business associate is to act on the request for amendment or whether the business associate will forward the individual’s request to the covered entity) and the timeframe for the business associate to incorporate any amendments to the information in the designated record set.]

2.8.Maintain and make available the information required to provide an accounting of disclosures to the [Choose either “covered entity” or “individual”] as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528. The Business Associate also shall forward to the Covered Entity for action, within ____ business days of the Business Associate’s receipt, any request for an accounting of disclosures that the Business Associate receives from an individual;

[The parties may wish to add additional specificity regarding how the business associate will respond to a request for an accounting of disclosures that the business associate receives directly from the individual (such as whether and in what time and manner the business associate is to provide the accounting of disclosures to the individual or whether the business associate will forward the request to the covered entity) and the timeframe for the business associate to provide information to the covered entity.]

2.9.To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and

2.10.Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

3.Permitted Uses and Disclosures by Business Associate

3.1.Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in theServices Agreement.

3.2.Business associate may use or disclose Protected Health Information as required by law.

3.3.Business associate agrees to make uses and disclosures and requests for Protected Health Information consistent with Covered Entity’s minimum necessary policies and procedures.[Covered entity’s minimum necessary policies and procedures may be attached as an addendum. Add “See Addendum to 3.3” if applicable.]

3.4.Business Associate may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth below;

(a)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)Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

(c)Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.

4.Covered Entity’s Privacy Practices and Restrictions

4.1.Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of Protected Health Information.

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

4.3.Covered Entity shall notify Business Associate of any restriction on the use or disclosure of Protected Health Information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.

5.Permissible Requests by Covered Entity

Covered Entity shall not askBusiness Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity, provided that, when the underlying Services Agreement includes provisions for the use or disclosure of Protected Health Information for Data Aggregation or management and administrative activities of Business Associate, Business Associate may use or disclose Protected Health Information for such purposes.

6.Term and Termination

6.1.Term. The Term of this Agreement shall begin as of the Effective Date and shall terminate when all of the Protected Health Information is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroyProtected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.

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

(a)Provide a reasonable opportunity for Business Associate to cure the breach or end the violation; or

(b)Terminate this Agreement and theServices Agreement or applicable sections thereofif Business Associate does not cure the breach or end the violation within the time specified by Covered Entity; or

(c)Immediately terminate this Agreement and the Services Agreement or applicable sections thereofif Business Associate has breached a material term of this Agreement and cure is not possible; or

(d)If neither termination nor cure is feasible, Covered Entity shall report the violation to the Secretary of HHS.

6.3.Effect of Termination.

Upon termination of this Agreement for any reason, Business Associate, with respect to Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associateon behalf of Covered Entity, shall:

(a)Retain only that Protected Health Information which is necessary forBusiness Associate to continue its proper management and administration or to carry out its legal responsibilities;

(b)Return to Covered Entity (or if not feasible to return and agreed to by Covered Entity, destroy) the remaining Protected Health Information that the Business Associate still maintains in any form;

(c)Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Business Associate retains the Protected Health Information;

(d)Not use or disclose the Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at 3.4(a) and (b) which applied prior to termination; and

(e)Return (or destroy, if agreed to by Covered Entity) to Covered Entity the Protected Health Information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

[The agreement also could provide that the business associate will transmit the protected health information to another business associate of the covered entity at termination, and/or could add terms regarding a business associate’s obligations to obtain or ensure the destruction of protected health information created, received, or maintained by subcontractors.]

7.Miscellaneous

7.1.Regulatory References. A reference in this Agreement to a section in the HIPAA Rulesmeans the section as in effect or as amended.

7.2.Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary to comply with the applicable requirements of the HIPAA Rules.

7.3.Survival. The rights and obligations of Business Associate under Sections 2.8 (Accounting of Disclosures) and 6.3 (Effect of Termination) of this Agreement shall survive the termination of this Agreement.

7.4.Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to comply with the HIPAA Rules.

7.5.No Third Party Beneficiaries. Nothing in this Agreement shall be deemed to confer or shall confer on any person or entity other than the parties any rights, remedies, obligations, or liabilities whatsoever.

7.6.Entire Understanding. This Agreement contains the entire understanding between the parties with regard to its subject matter and supersedes any prior oral or written Business Associate agreement or contract between the parties.

Business Associate and Covered Entity have each caused this Business Associate Agreement to be signed and delivered by its respective duly authorized representative:

BUSINESS ASSOCIATECOVERED ENTITY

____________

By:______By:______

Print Name: ______Print Name:______

Title:______Title:______

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8/26/2013Copyright © 2013 by SVMIC