Copyright © 2020 Opencare

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Opencare Revenue Cycle Management Services

Opencare Revenue Cycle Management Services

Copyright © 2020 Opencare

Thanks for choosing Opencare.

THIS BUSINESS ASSOCIATE AGREEMENT (this “BAA”), is by and between “Covered Entity” and the "Business Associate", and forms part of the agreement between the Business Associate and Covered Entity relating to the Business Associate’s provision of certain services to Covered Entity (the “MSA”). 

RECITALS:  
WHEREAS, the business associate and Covered have entered into that certain MSA; WHEREAS, pursuant to the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (the “Act”) and the “Health Information Technology for Economic and Clinical Health Act,” part of the “American Recovery and Reinvestment Act of 2009” (“HITECH Act”), the Department of Health and Human Services (“HHS”) has promulgated regulations at 45 C.F.R. Parts 160-64, including regulations implementing certain privacy requirements (the “Privacy Rule”), certain security requirements regarding electronic media (“Security Rule”) and certain breach notification requirements (“Breach Notification Rule”), each as amended from time to time (the Act, HITECH Act, the Privacy Rule, the Security Rule and the Breach Notification Rule referred to collectively herein as “HIPAA”); 

WHEREAS, the Business Associate may receive, maintain, retain, record, store, transmit, hold, use and/or disclose Protected Health Information (as defined below) in conjunction with the services being provided under the MSA, thus necessitating a written agreement that meets applicable requirements of the Privacy Rule and the Security Rule, and making advisable certain additional agreements regarding HIPAA; and WHEREAS, the Business Associate and Covered Entity desire to satisfy the foregoing Privacy Rule and Security Rule requirements through this BAA, and otherwise to address related matters regarding HIPAA on the terms and conditions set forth herein. NOW THEREFORE, in consideration of the mutual agreements and undertakings of the parties, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows: 

1. Definitions: The following terms shall have the following meaning when used in this BAA: 
a. “Breach” shall have the same meaning as the term “breach” in 45 C.F.R. § 164.402. 
b. “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. § 164.501. 
c. “Electronic Protected Health Information” shall mean Protected Health Information that is “electronic protected health information” as defined in 45 C.F.R. § 160.103. 
d. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g). 
e. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Covered Entity, or created, maintained or received on behalf of Covered Entity. 
f. “Unsecured Protected Health Information” shall mean Protected Health Information that is “unsecured protected health information” as defined in 45 C.F.R. § 164.402. 
g. “Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103. 
h. “Secretary” shall mean the Secretary of HHS or the designee of the Secretary of HHS. 
i. “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits Protected Health Information on behalf of the Business Associate. 

Any capitalized term not specifically defined herein shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable.  The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA. 

2. Obligations and Activities of the business associate: 

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

b. the Business Associate agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this BAA. 

c. the Business Associate agrees to report to the Covered Entity any use or disclosure of Protected Health Information not provided for by this BAA, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware.  The parties hereto acknowledge and agree that this Section 2(c) constitutes notice by the Business Associate to Covered Entity of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required.  Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on the business associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent the Business Associate is aware, in unauthorized access, use or disclosure of Electronic Protected Health Information. 

d. In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, the Business Associate agrees to ensure that any Subcontractors that create, receive, maintain or transmit Protected Health Information on behalf of the Business Associate agree in writing to the same restrictions, conditions, and requirements that apply to the Business Associate under this BAA with respect to such Protected Health Information. 

e. the Business Associate agrees to make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524. 

f. the Business Associate agrees to 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 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.526. 

g. the Business Associate agrees to maintain and make available the information required to provide an accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528.   

h. To the extent that the Business Associate is to carry out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, the Business Associate agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligations. 

i. the Business Associate agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA.

 3. Permitted Uses and Disclosures by the Business Associate: 

a. The Business Associate may only use or disclose Protected Health Information as necessary to perform the MSA.  In addition, the Business  Associate is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R.     164.514(a)-(c). 

b. The Business Associate may use or disclose Protected Health Information as Required By Law.   

c. The Business Associate agrees to make uses and disclosures and requests for Protected Health Information consistent with Covered Entity’s minimum necessary policies and procedures. 

d. The Business Associate may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below. 

e. The Business Associate may use Protected Health Information for the proper management and administration of OpenCare or to carry out the legal responsibilities of the Business Associate. 

f.  The Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are Required By Law, or the 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 notified the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. 

g. The business associate may provide Data Aggregation services relating to the Health Care Operations of Covered Entity. 

4. Obligations of Covered Entity: 

a. Covered Entity shall notify the Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 C.F.R.   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, the permission by an Individual to use or disclose his or her 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 on the use or disclosure of Protected Health Information that Covered Entity has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect the Business Associate’s use or disclosure of Protected Health Information. 

d. Except with respect to use and disclosure by the Business Associate of Protected Health Information under Sections 3(e), 3(f) and 3(g), above, Covered Entity shall not request the Business Associate use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Covered Entity. 

5. Term and Termination: 

a. Term.  The Term of this BAA shall commence as of the Effective Date under the MSA and shall terminate upon the termination of the MSA to which this BAA is appended as an exhibit or on the date Covered Entity terminates this BAA for cause as authorized in subsection (b) of this Section 5, whichever is sooner. 

b. Termination for Cause.  The business associate authorizes termination of this BAA by Covered Entity upon written notice to the Business     Associate if Covered Entity determines the business associate has violated a material term of this BAA and the business associate has not cured the breach or ended the violation within thirty (30) days of Covered Entity providing written notice thereof to the Business Associate. 

c. Obligations of the Business Associate Upon Termination.  Upon termination of this BAA, the Business Associate shall: (i)  Retain only that Protected Health Information which is necessary for the Business Associate to continue its proper management and administration or to carry out its legal responsibilities;    (ii)  Return to Covered Entity or Covered Entity’s designee (to the extent permitted by HIPAA), or, if agreed to by Covered Entity, destroy the remaining Protected Health Information that the Business Associate still maintains in any form;  (iii) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. 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 the Business Associate retains Protected Health Information;  (iv) Not use or disclose Protected Health Information retained by the business associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 3 (e) and (f), above, which applied prior to termination; and (v)  Return to Covered Entity, or, if agreed to by Covered Entity, destroy Protected Health Information retained by the Business Associate when it is no longer needed by the Business Associate for its proper management and administration or to carry out its legal responsibilities. 

d. Survival. The obligations of the Business Associate under this Section 5 shall survive the termination of this BAA. 

6. Miscellaneous: 

a. Regulatory References.  A reference in this BAA to a section in the Privacy Rule, the Security Rule, or to another provision of HIPAA means the provision as in effect or as amended. 

b. Amendment.  The parties hereto agree to take such action as is necessary to amend this BAA as is necessary for the Covered Entity to comply with the requirements of the HIPAA and any other applicable law.   

c. Interpretation.  Any ambiguity in this BAA shall be resolved to permit compliance with HIPAA. 

d. Governing Law and Disputes.  The BAA, and all matters arising out of or relating to the BAA, shall be governed by the laws of the State of New York without giving effect to its conflicts of laws provisions, except to the extent New York law is preempted by any provision of federal law, including HIPAA.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York for any litigation among the parties hereto arising out of or relating to the BAA.  EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT OR RIGHTS IT HAS OR MAY HAVE TO TRIAL BY JURY OF ANY DISPUTE ARISING FROM OR RELATED TO THIS BAA.

e. No Third Party Beneficiary.  Nothing expressed or implied in this BAA is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever. 

f. Controlling Provisions.  In the event of any conflict between the terms and conditions of this BAA and the MSA, the provisions of this BAA shall control.   

g. Effect.  This BAA shall be binding upon, and shall insure to the benefit of, the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives. 

h. Severability.  In the event any provision of this BAA is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of the provisions of this BAA shall remain in full force and effect if it reasonably can be given effect. 

i.  Notices.  Any notice, consent, request or other communication required or permitted under this BAA shall be delivered pursuant to the notice section set forth in the MSA.