Table of Contents
This BUSINESS ASSOCIATE AGREEMENT (this "BA Agreement") is by and between STREAMLINED MEDICAL SOLUTIONS, LLC., a Texas corporation ("SMS"), and the Healthcare Provider ("Covered Entity") who utilizes SMS’s software products and services (the "Products and Services"). SMS and Covered Entity may be referred to individually as a "Party" and collectively as the "Parties". Capitalized terms used in this BA Agreement without definition shall have the meanings assigned to such terms by Covered by the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time (collectively, "HIPAA").
WHEREAS, SMS receives Protected Health Information ("PHI") from or on behalf of Covered Entity pursuant to Covered Entity’s use of SMS’s Products and Services; and
WHEREAS, the Parties desire to enter into this BA Agreement in order for the Parties to comply with HIPAA.
NOW FURTHERMORE, in consideration of the mutual premises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
I. Obligations of SMS
Section 1.1. Use and Disclosure of PHI. SMS may use and disclose PHI as permitted or required under this BA Agreement or as Required by Law, but shall not otherwise use or disclose PHI. SMS shall not use or disclose PHI received from Covered Entity in any manner that would constitute a violation of HIPAA if so used or disclosed by Covered Entity (except as set forth in Sections 1.1(b), (c), (d) and (e) of this BA Agreement). To the extent SMS carries out any of Covered Entity’s obligations under the HIPAA Privacy Rule, SMS shall comply with the requirements of the HIPAA Privacy Rule that apply to Covered Entity in the performance of such obligations. Without limiting the generality of the foregoing, SMS is permitted to use or disclose PHI as set forth below:
Section 1.2. Safeguards. SMS shall use reasonable and appropriate safeguards to prevent the use or disclosure of PHI except as otherwise permitted or required by this BA Agreement. In addition, SMS shall implement Administrative Safeguards, Physical Safeguards and Technical Safeguards that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI transmitted or maintained in Electronic Media ("EPHI") that it creates, receives, maintains or transmits on behalf of Covered Entity. SMS shall comply with the HIPAA Security Rule with respect to EPHI.
Section 1.3. Minimum Necessary Standard. To the extent required by the "minimum necessary" requirements of HIPAA, SMS shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
Section 1.4. Mitigation. SMS shall take reasonable steps to mitigate, to the extent practicable, any harmful effect (that is known to SMS) of a use or disclosure of PHI by SMS in violation of this BA Agreement.
Section 1.5. Subcontractors. SMS shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor that creates, receives, maintains or transmits PHI on behalf of SMS. SMS shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to SMS under this BA Agreement.Section 1.6. Reporting Requirements
Section 1.7. Access to Information. SMS shall make available PHI to Covered Entity for so long as SMS maintains the PHI in a Designated Record Set. If SMS receives a request for access to PHI directly from an Individual, SMS shall forward such request to Covered Entity within ten (10) business days. Covered Entity shall have the sole responsibility for determining whether to approve a request for access to PHI and to provide such access to the Individual.
Section 1.8. Availability of PHI for Amendment. SMS shall provide PHI to Covered Entity for amendment, and incorporate any such amendments in the PHI (for so long as SMS maintains such information in the Designated Record Set), in accordance with this BA Agreement and as required by 45 C.F.R. § 164.526. If SMS receives a request for amendment to PHI directly from an Individual, SMS shall forward such request to Covered Entity within ten (10) business days. Covered Entity shall have the sole responsibility for determining whether to approve an amendment to PHI and to make such amendment.
Section 1.9. Accounting of Disclosures. Within thirty (30) business days of written notice by Covered Entity to SMS that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies), SMS shall make available to Covered Entity such information as is in SMS’s possession and is required for Covered Entity to make the accounting required by 45 C.F.R. § 164.528. If SMS receives a request for an accounting directly from an Individual, SMS shall forward such request to Covered Entity within ten (10) business days. Covered Entity shall have the sole responsibility for providing an accounting to the Individual.
Section 1.10. Availability of Books and Records. Following reasonable advance written notice, SMS shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by SMS on behalf of, Covered Entity available to the Secretary for purposes of determining Covered Entity’s compliance with HIPAA.
II. Obligations of Covered Entity
Section 2.1. Permissible Requests. Covered Entity shall not request SMS to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity.
Section 2.2. Minimum Necessary Information. When Covered Entity discloses PHI to SMS, Covered Entity shall provide the minimum amount of PHI necessary for the accomplishment of Covered Entity’s purpose.
Section 2.3. Appropriate Use of PHI. Covered Entity and its employees, representatives, consultants, contractors and agents shall not submit any PHI to SMS (A) outside of the Products and Services, including but not limited to submissions to any online forum made available by SMS or its Subcontractors to their customers, email transmissions, and submissions through any support website, portal, or online help desk or similar service made available by SMS or its Subcontractors outside of the Products and Services; or (B) directly to any third party involved in the provision of an online forum, email, support website, online help desk or other service described in (A), above.
Section 2.4. Permissions; Restrictions. Covered Entity warrants that it has obtained and will obtain any consent, authorization and/or other legal permission required under HIPAA and other applicable law for the disclosure of PHI to SMS. Covered Entity shall notify SMS of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect SMS’s use or disclosure of PHI. Covered Entity shall not agree to any restriction on the use or disclosure of PHI under 45 C.F.R. § 164.522 that restricts SMS’s use or disclosure of PHI under this BA Agreement unless such restriction is Required By Law or SMS grants its written consent.
Section 2.5. Notice of Privacy Practices. Except as Required By Law, with SMS’s consent or as set forth in this BA Agreement, Covered Entity shall not include any limitation in Covered Entity’s notice of privacy practices that limits SMS’s use or disclosure of PHI under this BA Agreement.
III. Terminations of this BA Agreement
Section 3.1. BA Agreement Term. This BA Agreement shall continue in full force and effect for so long as SMS maintains any PHI.
Section 3.2. Termination Upon Breach of this BA Agreement. This BA Agreement may be terminated by either Party (the "Non-Breaching Party") upon ninety (90) days written notice to the other Party (the "Breaching Party") in the event that the Breaching Party materially breaches this BA Agreement in any material respect and such breach is not cured within such ninety (90) day period. Any determination of whether a material breach has been cured shall be made by SMS in its sole discretion.
Section 3.3. Return or Destruction of PHI upon Termination. Upon termination of the agreement, SMS shall return or destroy all PHI received from Covered Entity or created or received by SMS on behalf of Covered Entity and which SMS still maintains as PHI. Notwithstanding the foregoing, to the extent that SMS determines, in its sole discretion, that it is not feasible to return or destroy such PHI, this BA Agreement (including, without limitation, Section 1.1(e) of this BA Agreement) shall survive termination of this BA Agreement and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.
IV. Miscellaneous Provisions
Section 4.1. Applicability. This BA Agreement relates to PHI that SMS or SMS’s Subcontractors receive pursuant to Covered Entity’s use of SMS’s Products or Services.
Section 4.2. HIPAA Amendments. The Parties acknowledge and agree that the Health Information Technology for Economic and Clinical Health Act and its implementing regulations impose requirements with respect to privacy, security and breach notification applicable to Business Associates (collectively, the "HITECH BA Provisions"). The HITECH BA Provisions and any other future amendments to HIPAA affecting Business Associate Agreements are hereby incorporated by reference into this BA Agreement as if set forth in this BA Agreement in their entirety, effective on the date as may be specified by HIPAA.
Section 4.3. Regulatory References. A reference in this BA Agreement to a section in HIPAA means the section as it may be amended from time-to-time.
Section 4.4. Relationship of the Parties. This BA Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties and the status of the Parties shall be independent parties to a contractual arrangement. Neither Party shall have the authority to bind the other Party by contract or otherwise.
Section 4.5. Entire Agreement. This BA Agreement constitutes the entire agreement between the Parties as to their subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning such subject matter. Except as otherwise set forth therein, no modification, amendment, or waiver of any provision of this BA Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted.
Section 4.6. Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated therein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
Section 4.7. Counterparts. Covered Entity’s use of the Products and Services shall constitute Covered Entity’s consent to this BA Agreement. Alternatively, this BA Agreement may be executed in one or more counterparts, which may be delivered by fax or other electronic transmission, including email, each of which shall be deemed an original and which taken together shall form one legal instrument.STREAMLINED MEDICAL SOLUTIONS, LLC.