Business Associate Agreement (“BAA”) between Customer and Harte Hanks
The following terms and conditions set forth in this BAA are hereby incorporated into (and form part of) any fully-executed Agreement, Schedule, Statement of Work, Work Order or similar contract (collectively “Agreement”) executed between the parties where these BAA clauses are incorporated into such Agreement by reference.
I. Overview / Definitions
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that was enacted on August 21, 1996 and established rules governing the privacy of all identifiable health information regardless of form (referred to as “Protected Health Information” or “PHI”), Electronic Data Interchange (EDI) & Code Set Standards, and the security of PHI. The privacy standards are set forth in the rule entitled “Standards for Privacy of Individually Identifiable Health Information” (the Privacy Rule). The standards established under the Health Insurance Portability and Accountability Act and subsequent interim and supplemental rules were consolidated and further modified by way of the Omnibus Final Rule, which became effective as of March 26, 2013 (collectively referred to herein as “HIPAA”). HIPAA applies to health care providers, health plans, and health care clearinghouses. HIPAA refers to these as “Covered Entities.” For purposes of these terms and conditions and HIPAA, these provisions will apply to the Customer that entered into the Agreement to which this Business Associate Agreement (BAA) is incorporated by reference. Moreover, Covered Entity shall also include Customer and/or subsidiaries and as such, these entities are collectively referred to as a “Covered Entity.” HIPAA also indirectly applies to third parties that have access to Covered Entity PHI to provide services to, or on behalf of Covered Entity. HIPAA requires that Covered Entity enter into an agreement with each of these third parties, and that these third parties enter into agreements with their agents and sub- contractors that have access to Covered Entity PHI, the contents of which is defined by the applicable rule, and is based on the manner and purpose for which the Covered Entity PHI is being disclosed. Detailed information regarding HIPAA and each of the rules can be found at: aspe.hhs.gov/admnsimp.
Terms used herein, but not otherwise defined, shall have the same meaning as those terms in 45 CFR §160.103, 45 CFR § 164.304, 45 CFR § 164.501and Pub. L. 111-5 §13400, as well as defined in Pub.L. 104-191 and Pub.L. 111-5.
II. Third Parties Having Access to Covered Entity PHI
1. Background. 45 CFR §164.502(e), titled “Standards: Disclosures to Business Associates” states that a “covered entity may disclose protected health information to a business associate and may allow a business associate to create, receive, maintain, or transmit protected health information on its behalf, if the covered entity obtains satisfactory assurance that the business associate will appropriately safeguard the information… through a written contract or other written agreement or arrangement with the business associate.”
2. Applicability. The terms and conditions in Section II shall apply if you (as a Business Associate entity as defined in HIPAA and hereinafter referred to as “You” or “Your”) have access to Covered Entity PHI to provide services to, or on behalf of, Covered Entity.
3. Permitted Uses.
- Except as otherwise limited herein, You may use or disclose Covered Entity PHI to perform functions, activities or services for, or on behalf of Covered Entity as specified in an existing contract or arrangement with Covered Entity, provided that such use or disclosure would not violate HIPAA, if done by Covered Entity or the minimum necessary policies and procedures of Covered Entity. PHI is defined as individually identifiable health information transmitted in any form or medium.
- Except as otherwise limited herein, You may use Covered Entity PHI for Your proper management and administration or to carry out Your legal responsibilities.
- Except as otherwise limited herein, You may disclose Covered Entity PHI for Your proper management and administration, provided that such disclosures are Required By Law, or if You obtain 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 You of any instances of which it is aware in which the confidentiality of the information has been breached.
- Except as otherwise limited herein, You may use Covered Entity PHI to provide Data Aggregation services to Covered Entity as permitted by 45 CFR §164.504(e)(2)(i)(B).
- You may use Covered Entity PHI to report violations of law to the appropriate Federal and State authorities, consistent with 45 CFR § 164.502(j)(1).
4. Limitation on Use and Appropriate Safeguards. You agree to not use or disclose Covered Entity PHI other than as permitted or required as provided for herein or as Required By Law. You agree to use appropriate safeguards to prevent such use or disclosure of Covered Entity PHI.
5. Report of Breach. You acknowledge and agree to establish a system to monitor and investigate use and disclosure of Covered Entity PHI in accordance with HIPAA. You also agree to take responsibility to investigate any potential inappropriate access, use, or disclosure of Covered Entity PHI under Your control, in order to determine if a reportable breach has occurred under HIPAA. Should you determine that a use or disclosure of Covered Entity PHI constituted a reportable breach under HIPAA, You agree to adhere to the reporting requirements under HIPAA. You further agree to immediately report to Covered Entity (1) any use or disclosure of Covered Entity PHI not provided for herein of which you become aware, (2) any Security Incident involving the inappropriate disclosure or access of Covered Entity PHI of which You become aware, and (3) any breach of Unsecured Covered Entity PHI You become aware of as required by Pub. L. 111-5 § 13402(b). Such report shall include the name of each individual whose Covered Entity PHI has been, or is reasonably believed by You to have been accessed, acquired, or disclosed during such breach. Such reports shall be submitted within two (2) business days of when you become aware of such breach, and shall contain such information as you reasonably believe is required for Covered Entity to further investigate. You also shall provide such assistance and further information as reasonably requested by Covered Entity. You agree to mitigate, to the extent practicable, any harmful effect that is known to You of a use or disclosure of Covered Entity PHI by You in violation of the requirements contained herein.
6. Agents/Subcontractors. You agree to ensure that any agents, including any subcontractor to whom You provide Covered Entity PHI (whether received from or Covered Entity created or received by You) on behalf of Covered Entity agree in writing to the same restrictions and conditions that apply in these terms to You with respect to such information.
7. Access to Covered Entity PHI. You agree to provide access, at the request of Covered Entity, and in the time and manner as prescribed by HIPAA, to Covered Entity PHI in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 CFR §164.524. Such time and manner shall allow Covered Entity to comply with its obligations under HIPAA.
8. Amendment to Covered Entity PHI. You agree to make any amendment(s) to Covered Entity PHI in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 CFR §164.526 at the request of Covered Entity or an Individual, and in the time and manner as prescribed by HIPAA. Such time and manner shall allow Covered Entity to comply with its obligations under HIPAA.
9. Accounting of Covered Entity PHI. You agree to document such disclosures of Covered Entity 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 Covered Entity PHI in accordance with 45 CFR § 164.528 and in Pub.L. 111-5 §13405(c). You further agree to provide to Covered Entity or an Individual, as applicable, in a time and manner as prescribed by HIPAA and Pub.L. 111-5, such information collected in accordance with this paragraph in response to a request for an accounting of disclosures of Covered Entity PHI in accordance with 45 CFR § 164.528 and Pub.L. 111-5. Such time and manner shall comply with the obligations under HIPAA or Pub.L. 111-5.
10. Property Rights. Covered Entity PHI shall be and remain the property of Covered Entity. You agree that You acquire no title or rights to Covered Entity PHI, including any de-identified information, as a result of these terms and conditions.
11. Prohibition on Sale of Electronic Health Records or Covered Entity PHI. As required by Pub.L. 111-5 §13405(d)(1), and unless approved by Covered Entity, consistent with the exceptions set forth in Pub.L. 111-5 §13405(d)(2), You shall not directly or indirectly receive remuneration in exchange for any Covered Entity PHI of an individual unless Covered Entity has obtained from the individual a valid authorization that includes a specification of whether the Covered Entity PHI can be further exchanged for remuneration by the entity receiving the Covered Entity PHI of that individual.
12. Prohibition on Marketing. As defined in Pub.L. 111-5 §13406(a) and 45 CFR § 164.508, and unless approved by Covered Entity, You shall not directly or indirectly perform marketing to Covered Entity patients using Covered Entity PHI that was either provided by Covered Entity or created or otherwise acquired by You on behalf of Covered Entity.
III. Security Standards for the Protection of Electronic Protected Health Information
1. Background. 45 CFR Part 164 Subpart C is titled “Security Standards for the Protection of Electronic Protected Health Information.”
2. Applicability. The terms and conditions in this Section III shall apply if Covered Entity is transmitting electronic protected health information (EPHI) to You for processing, storage, management or the like.
3. Security. As required by Pub.L. 111-5 § 13401(a), the following sections of title 45 of the Code of Federal Regulations (“HIPAA Security Standards”) also shall apply to You in Your capacity as a business associate:
- 164.308 (Administrative Safeguards)
- 164.310 (Physical Safeguards)
- 164.312 (Technical Safeguards)
- 164.316 (Policies and Procedures and Documentation Requirements) The simplified HIPAA regulations can be found at: www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/combined/hipaa-simplification-201303.pdf
If You violate any of these provisions, the penalties as set forth in Section 1176 (General Penalty For Failure to Comply With Requirements & Standards) and Section 1177 (Wrongful Disclosure of Individually Identifiable Health Information) of the Social Security Act shall apply to You. This information can be located at:
4. Property Rights. The EPHI shall be and remain the property of Covered Entity. You agree that You acquire no title or rights to the EPHI, including any de-identified information, as a result of these terms and conditions.
5. Beneficiaries. The individuals who are the subject of the EPHI are intended to be third party beneficiaries of these terms and conditions.
IV. Third Parties Performing EDI Transactions
1. Background. 45 CFR §162.915 titled “Trading Partner Agreements” states that trading partner agreements cannot contain any provision that adds to or changes the content or meaning of any of the claims types listed in Section IV(2).
2. Applicability. The terms and conditions in this Section IV shall apply if You are transacting any claims of the following types with Covered Entity:
- Health care claims or equivalent encounter information
- Health care payment and remittance advice
- Coordination of benefits
- Health care claim status
- Enrollment and disenrollment in a health plan
- Eligibility for a health plan
- Health plan premium payments
- Referral certification and authorization
- First report of injury
- Health claims attachments
3. No Changes. You agree that You will not change the definition, data condition, or use of a data element or segment in a standard.
4. No Additions. You agree to not add any data elements or segments to the maximum defined data set.
5. No Unauthorized Uses. You agree to not use any code or data elements that are marked either “not used” in the standard’s implementation specification or are not in the standard’s implementation specifications.
6. No Changes to Meaning or Intent. You agree to not change the meaning or intent of any of the standard’s implementation specifications.
7. Property Rights. Covered Entity PHI shall be and remain the property of Covered Entity. You agree that You acquire no title or rights to Covered Entity PHI, including any de-identified information, as a result of these terms and conditions.
V. General Terms
1. Applicability. The terms and conditions of this Section V shall apply to You.
2. Availability of Books and Records to Secretary. You agree to make Your internal practices, books, and records, including policies, procedures and PHI relating to the use and disclosure of Covered Entity PHI received from, or created or received by You on behalf of Covered Entity, available to the Secretary of the United States Department of Health and Human Services (the “Secretary”), in a time and manner as prescribed by HIPAA or designated by the Secretary for purposes of the Secretary determining Covered Entity’s compliance with HIPAA. Such time and manner shall allow Covered Entity to comply with its obligations under HIPAA.
3. Covered Entity Access to Facilities, Books and Records. You shall, upon reasonable request by Covered Entity, and with reasonable oversight by You, give Covered Entity reasonable access for inspection and copying to Your facilities used for the maintenance or processing of Covered Entity PHI, and to Your books, records, practices, policies, and procedures concerning the use and disclosure of Covered Entity PHI, for the purpose of determining, in good faith, Your compliance with these terms and conditions. You shall also permit Covered Entity to perform reasonable audits of Your management and use of Covered Entity PHI.
4. As provided for in Pub.L. 111-5 Section 13411, You shall be subject to audits by the Secretary to ensure You comply with Subtitle D (Privacy) of Pub.L. 111-5, as well as 45 CFR 164 subparts C and E.
5. Term and Termination.
- These terms and conditions shall terminate (a) when all of the PHI provided by Covered Entity to You, or created or received by You on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is not feasible to return or destroy the Covered Entity PHI, protections are extended to such information, in accordance with the termination provisions in this section.
- Termination for Cause. Upon Covered Entity’s knowledge of a material breach by You, Covered Entity shall either:
1. Provide an opportunity for You to cure the breach or end the violation and terminate these terms and conditions if You do not cure the breach or end the violation within the time specified by Covered Entity.
2. Immediately terminate these terms and conditions if You have breached a material term and cure is not possible, or
3. If neither termination nor cure are feasible, Covered Entity shall report the violation to the Secretary.
- Except as provided in paragraph (d) of this section, upon termination of these terms and conditions, for any reason, You shall return or destroy all PHI received from Covered Entity, or created or received by You on behalf of Covered Entity. This provision shall apply to Covered Entity PHI that is in the possession of Your subcontractors or agents. You shall retain no copies of Covered Entity PHI.
- In the event that You determine that returning or destroying Covered Entity PHI is not feasible, You shall provide to Covered Entity notification of the conditions that make return or destruction not feasible. Upon mutual agreement of the Parties that return or destruction of Covered Entity PHI is not feasible, You shall extend the protections of these terms and conditions to such Covered Entity PHI and limit further uses and disclosures of such Covered Entity PHI to those purposes that make the return or destruction not feasible, for so long as You maintain such Covered Entity PHI.
6. Covered Entity Obligations. Covered Entity shall:
- Provide You with our Notice of Privacy Practices (NOPP) that we produce in accordance with 45 CFR §164.520. [Commonly, the COVERED ENTITY will make the NOPP available by way of click web-link].
- Notify You of any limitation(s) in our Notice of Privacy Practices in accordance with 45 CFR §164.520, to the extent that such limitation(s) may affect Your use or disclosure of Covered Entity PHI.
- Notify You of any changes in, or revocation of, permission by an Individual to use or disclose Covered Entity PHI, to the extent that such changes may affect Your use or disclosures of Covered Entity PHI.
- Notify You of any restriction to the use or disclosure of Covered Entity PHI that Covered Entity has agreed to in accordance with 45 CFR §164.522 to the extent that such restriction may affect Your use or disclosure of Covered Entity PHI.
- Not request You to use or disclose Covered Entity PHI in any manner that would not be permissible under HIPAA if done by Covered Entity, except for Your data aggregation or management and administrative activities, and permissible as stipulated herein.
7. Regulatory References. A reference in these terms and conditions to a section in HIPAA means the section as in effect or as amended.
8. Amendment. The Parties agree to take such action as is necessary to amend these terms and conditions, in writing, from time to time as is necessary for Covered Entity to comply with the requirements of HIPAA and HIPAA (Pub.L.No. 104-191).
9. Survival. Your respective rights and obligations under section V(5) parts (c) and (d) (“Term and Termination”) shall survive the termination of these terms and conditions.
10. Interpretation. Any ambiguity in these terms and conditions shall be resolved to permit Covered Entity to comply with HIPAA.
11. Indemnification. You shall defend, indemnify and hold harmless Covered Entity, and its directors, officers, employees, contractors and agents, from and against any or all cost, losses, expenses, actions, claims, damages, third-party demands, obligations, penalties and liabilities arising out of Your activities or failure to perform Your obligations under this Agreement, except to the extent that such cost, loss, expense, action, claim, damage, third-party demand, obligation, penalty or liability was incurred as a result of the gross negligence or willful misconduct of Covered Entity. As a condition precedent to Your obligation to indemnify Covered Entity under this Agreement, Covered Entity must notify You within a reasonable amount of time upon learning of any cost, loss, expense, action, claim, damage, third-party demand, obligation, penalty or liability in order to give You an opportunity to present any appropriate defense. Covered Entity shall have the right, but not the obligation, to participate in any defense at its own cost and with its own counsel. The provisions of this paragraph will survive the termination of this Agreement.
12. Compliance with Laws. You shall take such actions as are necessary for You or Covered Entity to comply with existing or future federal, state or local statutes, or regulations promulgated by regulatory agencies or accrediting organizations with regards to the services contemplated by this agreement (“Regulations”). You shall perform such work at Your own expense. Such actions will be completed within the times specified for compliance within the statute or regulation. Covered Entity shall have the right at all times to review and inspect the steps taken and procedures implemented by You to assure compliance with such Regulations. In the event that Covered Entity in good faith determines that Your compliance with such Regulations has not or cannot be accomplished by the timeframes required by the Regulation, Covered Entity may terminate this agreement on ninety (90) days prior written notice to you without further liability or penalty.
13. Application of HIPAA Privacy Provisions. As required in Pub.L. 111-5 § 13404, if You know of a pattern of activity or practice that constitutes a material breach or violation of Your obligations under these terms, You must take reasonable steps to cure the breach or end the violation, as applicable. If You are unable to cure the breach or end the violation, You shall inform Covered Entity, and Covered Entity shall either:
- Terminate the contract or arrangement, if feasible; or
- If termination is not feasible, report the problem to the Secretary
If Business Associate violates this provision, the penalties as set forth in Section 1176 (General Penalty for Failure to Comply With Requirements & Standards) and Section 1177 (Wrongful Disclosure of Individually Identifiable Health Information) of the Social Security Act shall apply to Business Associate. These provisions can be found at: