Business Associate Agreement

This BUSINESS ASSOCIATE AGREEMENT (this “BAA”) is entered into by and between you  (a Covered Entity or Business Associate) (“Customer”) and VideaHealth, Inc. (a Business Associate) (“VideaHealth”), each individually a “Party” and collectively the “Parties.”

RECITALS

WHEREAS, VideaHealth has entered into, or is contemplating entering into, an agreement with Customer for the purposes of performing certain services (the “Services”) on behalf of Customer (the “Services Agreement”) and VideaHealth may create, receive, maintain, or transmit Protected Health Information (defined below) in conjunction with the services being provided under the Services Agreement, thus necessitating a written agreement that meets applicable requirements of HIPAA (defined below);

WHEREAS, pursuant to the Health Insurance Portability and Accountability Act of 1996, including its implementing regulations (45 C.F.R. Parts 160-64), as amended from time to time (collectively, “HIPAA”); and 

WHEREAS, VideaHealth and Customer desire to satisfy HIPAA’s requirements through this Agreement and otherwise to address related matters regarding HIPAA.

AGREEMENT

NOW THEREFORE, to the extent HIPAA applies to each Party, and 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, agree as follows:

I. Definitions. 

The following terms shall have the following meaning when used in this Agreement:
A. "Electronic Protected Health Information” or “ePHI” shall have the same meaning given to such term as 45 C.F.R. § 160.103, limited to the information created, received, or maintained or transmitted from or on behalf of Customer.

B. “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).

C. “Protected Health Information” or “PHI” 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 Customer, or created, maintained or received on behalf of Customer. For avoidance of doubt, PHI shall include ePHI. 

D. “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 PHI on behalf of VideaHealth.

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. 

II. Obligations and Activities of VideaHealth.

A. VideaHealth agrees to not use or disclose PHI other than as permitted or required by this Agreement, the Services Agreement, or as Required By Law. 

B. VideaHealth agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic PHI, to prevent use or disclosure of the PHI other than as provided for by this Agreement.

C. VideaHealth agrees to report to the Customer any use or disclosure of PHI not provided for by this Agreement, including, without limitation, Breaches of Unsecured PHI as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. The Parties acknowledge and agree that this Section II(c) constitutes notice by VideaHealth to Customer of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Customer shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on VideaHealth’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 VideaHealth is aware, in unauthorized access, use or disclosure of Electronic PHI.

D. In accordance with 45 C.F.R. § 164.502(e)(1)(ii) and § 164.308(b)(2), if applicable, VideaHealth agrees to ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of VideaHealth agree in writing to substantially the same restrictions, conditions, and requirements that apply to VideaHealth under this Agreement with respect to such PHI. 

E. VideaHealth agrees to make available PHI in a Designated Record Set to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.524. 

F. VideaHealth agrees to make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by the Customer pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.526.

G. VideaHealth agrees to maintain and make available the information required to provide an accounting of disclosures to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.528. 

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

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

III. Permitted Uses and Disclosures by VideaHealth. 

A. VideaHealth may use or disclose PHI as reasonably necessary to  provide the Services under the Services Agreement or as otherwise permitted or required by this BAA. In addition, VideaHealth is authorized to use PHI to de-identify the PHI in accordance with 45 C.F.R. 164.502(d) and 164.514(a)-(c). For the avoidance of doubt, such de-identified data will no longer be considered PHI.

B. VideaHealth may use or disclose PHI as permitted or Required By Law.  

C. VideaHealth agrees to make uses and disclosures and requests for PHI consistent with Customer’s minimum necessary policies and procedures.

D. VideaHealth may not use or disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Customer, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below.

E. VideaHealth may use PHI for its proper management and administration or to carry out its legal responsibilities.

F. VideaHealth may disclose PHI for its proper management and administration or to carry out its legal responsibilities, provided the disclosures are Required By Law, or VideaHealth 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 VideaHealth of any instances of which it is aware in which the information’s confidentiality has been breached.

G. VideaHealth may provide Data Aggregation services relating to the Health Care Operations of Customer.

VI. Obligations of Customer.

A. Customer shall promptly notify VideaHealth of any limitation(s) in the notice of privacy practices of Customer under 45 C.F.R. 164.520, to the extent that such limitation may affect VideaHealth’s use or disclosure of PHI.

B. Customer shall notify VideaHealth 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 VideaHealth’s use or disclosure of PHI, prior to the effective date of such revocation.

C. Customer shall notify VideaHealth of any restriction on the use or disclosure of PHI that Customer has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect VideaHealth’s use or disclosure of PHI, prior to the effective date of such restriction.

D. Customer shall obtain any authorization or consents as may be required for any of the uses or disclosures of PHI pursuant to this Agreement or the Services Agreement.

E. Customer shall not request VideaHealth to use or disclose PHI in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Customer.

V. Term and Termination.

A. Term. The Term of this Agreement shall commence as of the Effective Date and shall terminate upon the termination of the Services Agreement or on the date either Party terminates this Agreement for cause as authorized in subsection (b) of this Section V, whichever is sooner. 

B. Termination for Cause. Each Party authorizes termination of this Agreement by the other Party if a Party determines the other Party has breached a material term of this Agreement and the breach is not cured within thirty (30) days after the breaching Party’s receipt of written notice of the alleged breach. 

C. Obligations of VideaHealth Upon Termination. Upon termination of this Agreement for any reason, VideaHealth shall:

• (i) Retain only that PHI which is necessary for VideaHealth to continue its proper management and administration or to carry out its legal responsibilities;
• (ii) Return to Customer or Customer’s designee (to the extent permitted by HIPAA) if feasible, or, if feasible and agreed to by Customer, destroy the remaining PHI that the VideaHealth 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 PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as VideaHealth retains PHI;
• (iv) Not use or disclose PHI retained by VideaHealth other than for the purposes for which such PHI was retained and subject to the same conditions set out at Section III(e) and (f), above, which applied prior to termination; and
• (v) Return to Customer, or, if agreed to by Customer, destroy PHI retained by VideaHealth when it is no longer needed by VideaHealth for its proper management and administration or to carry out its legal responsibilities.

D. Survival. The obligations of VideaHealth under this Section V shall survive the termination of this Agreement. 

‍VI. Notices.
‍Any notice, consent, request or other communication required or permitted under this Agreement shall be in writing and delivered and delivered in the manner as set forth in the Services Agreement.

‍VII. Miscellaneous.

A. Regulatory References. A reference in this Agreement to HIPAA means the provision as in effect or as amended. 

B. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the Customer to comply with the requirements of HIPAA and any other applicable law.  

C. Interpretation. Any ambiguity in this Agreement shall be resolved to permit compliance with HIPAA. 

D. No Third Party Beneficiary. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the Parties’ respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

E. Controlling Provisions. In the event that it is impossible to comply with both the Services Agreement and this Agreement, the provisions of this Agreement shall control with respect to those provisions of each agreement that expressly conflict with regard to the subject matter herein. This Agreement shall supersede and replace any prior VideaHealth agreements between the Parties, with respect to any actions of VideaHealth after the Effective Date.

F. Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors, assigns, heirs, executors, administrators and other legal representatives.

G. Severability. In the event any provision of this Agreement 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 this Agreements’ provisions shall remain in full force and effect if it reasonably can be given effect.