HomeMy WebLinkAboutHealth Advocate, Inc. - Plan Sponsor Agreement HEALTH ADVOCATE, INC.
Principal Executive Offices:
3043 Walton Road
Plymouth Meeting, PA 19462
PLAN SPONSOR AGREEMENT
This Plan Sponsor Agreement ( "this Agreement ") is made and entered into by and
between Health Advocate, Inc., ( "Health Advocate "), and the City of Yakima ( "Client "),
and is intended to describe their business relationship in which Health Advocate will
provide administrative and informational services to all eligible employees
( "Employees ") of Client, as well as the Employee's spouse, dependent children,
parents and mothers and fathers in -law (collectively, "Members "). Health Advocate and
Client will hereinafter collectively be referred to as "the Parties" and referred to
individually each as a "Party."
1. Description of Services:
Health Advocate will provide its Core Advocacy service as more fully described
on Exhibit "A" (collectively, "the Services ").
2. Term / Termination:
a. This Agreement shall be effective as of January 1, 2015 (the "Effective Date ").
b. The initial term of this Agreement shall be thirty -six (36) months from the
Effective Date ( "the Initial Term "). Thereafter, this Agreement shall
automatically renew for consecutive three (3) year terms (each a "Renewal
Term ") unless either Party provides written notice to the other, at least sixty
(60) days before the end of the Initial Term or any Renewal Term, of its
intention not to renew this Agreement. The terms and conditions of this
Agreement shall apply to the Initial Term and any Renewal Term unless
modified in writing by the Parties.
c. In the event that either Party shall default in the performance of any of its
material covenants, or undertakings under this Agreement, and such default
shall continue and not be corrected within thirty (30) days after the receipt of
written notice thereof from the non - breaching Party specifying the default and
requesting correction of such default, the non - breaching Party may terminate
this Agreement by delivering written notice to such effect to the other Party,
which notice shall be immediately effective upon receipt.
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d. This Agreement shall automatically terminate upon the occurrence of any of
the following events: (i) the making of a general assignment for the benefit of
creditors by a Party; (ii) the filing of a voluntary petition or the commencement
of any proceeding by either Party for any relief under any bankruptcy or
insolvency laws, or any laws relating to the relief of debtors, readjustment of
indebtedness, reorganization, composition or extension; (iii) any involuntary
petition or the commencement of any proceeding by or against either Party
for any relief under any bankruptcy or insolvency laws, or any laws relating to
the relief of debtors, readjustment of indebtedness, reorganization,
composition or extension that is not dismissed within ninety (90) days of the
date that it was filed or commenced; or (iv) suspension of the transaction of
the usual business of either Party for a period in excess of thirty (30) days.
e. Upon the termination or non - renewal of this Agreement and upon Client's
written request, Health Advocate will destroy, as requested and without cost
to Client, any Confidential Information that was received from Client pursuant
to this Agreement in tangible, electronic, or other form, other than signed
copies of this Agreement. Notwithstanding the foregoing, Health Advocate
may retain one copy for its legal archives of any Confidential Information in its
possession subject to any consent provided by or with such Member; if such
Member consent does not exist such Member Confidential Information shall
be subject to the confidentiality provisions of this Agreement.
3. Fees:
a. Client shall pay Health Advocate $1.75 per Employee per month ( "PEPM ") for
the Services as described herein ( "Service Fees ").
b. This Service Fee applies to the first contract year, only. However, Service
Fees will increase by no more 10% in both year two (2) and year three (3) of
the Initial Term. Notice of any Service Fee increase will be provided to Client,
in writing, at least ninety (90) days prior to the annual anniversary date of this
Agreement.
c. Such Service Fee shall be paid to Health Advocate on a monthly basis and
shall be received by Health Advocate, on or before the first (1 day of the
month for which Services are to be provided.
d. This Service Fee is based on approximately 735 Employee lives.
Plan Sponsor Agreement. 11/2014 2
e. This Service Fee includes Health Advocate's standard marketing materials
including employee brochures and telephone number wallet cards shipped to
a single location for distribution by Client. Other marketing materials will be
provided to Client as electronic files in camera -ready format. Additional
charges may apply for special requests including, but not limited to the costs
associated with travel for employee meetings and /or health fairs; customized
or additional educational, promotional, or marketing materials; and /or postage
and shipping costs for such additional materials.
f. All Fees paid hereunder shall be sent with an electronic file compiled by Client
containing information reasonably sufficient to permit Health Advocate to
reconcile compensation payments in a timely manner.
g. Upon termination of this Agreement, payments under this section shall cease;
however, Health Advocate shall be entitled to any payments due for periods or
partial periods that accrued prior to the date of termination for which Client has
received the Services and Health Advocate has not yet been paid.
4. Confidentiality:
a. The Parties agree to protect the privacy and confidentiality of any and all
Member personal and medical information in their possession ( "Confidential
Information "), abiding by all applicable laws and regulations.
b. The Parties agree to abide by the Business Associate Agreement, attached
hereto as Exhibit "B" and incorporated herein by reference, which contains
such terms as are required by the Health Insurance Portability and
Accountability Act of 1996 ( "HIPAA ") and the Final Rule for Standards for
Privacy of Individually Identifiable Health Information adopted by the United
States Department of Health and Human Services and codified at 45 C.F.R.
part 160 and part 164, subparts A & E (the "Privacy Rule "), the HIPAA Security
Rule, codified at 45 C.F.R. Part 164 Subpart C and Subtitle D of the Health
Information Technology for Economic and Clinical Health Act ( "HITECH ")
including C.F.R. Sections 164.308, 164.310, 164.312 and 164.316 in effect, or
as amended.
c. Health Advocate will not use any Confidential Information for any purpose
other than that for which it is provided nor will Health Advocate sell, transfer or
disclose this Confidential Information for its own benefit or the benefit of
others.
d. Health Advocate agrees that it shall notify Client, as soon as practicable, but at
least within ten (10) business days, following discovery of any suspected or
known unauthorized use or disclosure of Confidential Information, and will
cooperate with Client, as necessary, to remedy such unauthorized use or
Plan Sponsor Agreement. 11/2014 3
disclosure by Health Advocate or any third -party and to prevent further
unauthorized use.
e. Neither Party to this Agreement shall use any confidential information, (i.e.,
information that by its very nature is deemed to be confidential, including
confidential business information), of the other Party: (a) for its own benefit or
that of any third party; (b) to the Disclosing Party's detriment; or (c) in any
manner other than to perform its obligations under this Agreement.
f. It is essential for Confidential Information, including Protected Health
Information, to be maintained after the expiration of this Agreement for
regulatory and other business reasons. Accordingly, Health Advocate's
obligations of confidentiality with respect to Client's Confidential Information,
exchanged during the Term of this Agreement, shall survive any termination or
non - renewal of this Agreement.
5. Reports:
Upon request, Health Advocate will provide Client with its standard utilization
reports, on an annual basis, for Groups that exceed five hundred (500)
employees.
6. Indemnification:
a. Each Party shall indemnify, defend and hold harmless the other Party, its
officers, employees, directors, affiliated companies and agents from and
against any and all third party claims, actions demands and lawsuits (together
"Claims ") against the indemnified Party, and all resulting costs, liabilities,
damages and expenses, including reasonable attorneys' fees and costs of suit
arising out of:
i. the indemnifying Party's breach or violation of any representation,
warranty or covenant in this Agreement;
ii. the violation by a Party, in the performance of its obligations hereunder
of any law, statute, rule, regulation or order of a governmental
authority; or
iii. the indemnifying Party's negligence or willful misconduct.
b. Client will indemnify Health Advocate for any Claim brought against Health
Advocate arising out of, related to or as a result of Health Advocate's
compliance with a specific written Client direction. Further, Health Advocate
shall have no obligation to indemnify Client for any Claim brought against
Client arising out of, related to or as a result of Health Advocate's compliance
with a specific written Client direction.
Plan Sponsor Agreement. 11/2014 4
c. The obligations of indemnity hereunder are conditioned on the Party seeking
indemnification (i) giving the indemnifying Party prompt written notice of any
Claim for which indemnification will be sought, (ii) permitting the indemnifying
party to assume exclusively the control of the defense and settlement of such
Claim, and (iii) providing reasonable assistance and cooperation (at the
indemnified Party's expense) in the defense and settlement of such Claim.
The indemnified Party may take part in its defense at its own expense after the
indemnifying Party assumes the control thereof. The indemnifying Party shall
not settle or compromise any indemnified Claim hereunder in a manner that
admits fault or liability on the part of the indemnified Party, or requires the
indemnified Party to take or forbear from taking any action, unless with the
prior written consent of the indemnified Party (such consent not to be
unreasonably withheld).
d. Neither Party shall be liable for any Claim hereunder arising more than three
(3) years prior to the institution of suit thereon.
7. Insurance Provided by Health Advocate
a. At all times during performance of the Services, the Health Advocate shall
secure and maintain in effect insurance to protect the City and the Health
Advocate from and against all claims, damages, losses, and expenses arising
out of or resulting from the performance of this Agreement. Health Advocate
shall provide and maintain in force insurance in limits no less than that stated
below, as applicable. The City reserves the right to request higher limits should
it deem it necessary in the best interest of the public.
b. Commercial Liability Insurance. Before this Agreement is fully executed by the
parties, Health Advocate shall provide the City with a certificate of insurance
as proof of commercial liability insurance with a minimum liability limit of One
Million Dollars ($1,000,000.00) per occurrence combined single limit bodily
injury and property damage, and Five Million Dollars ($5,000,000.00) general
aggregate. If Health Advocate carries higher coverage limits, such limits shall
be shown on the Certificate of Insurance and Endorsements and the City of
Yakima, its elected officials, officers, agents, and employees shall be named
as certificate holders for such higher limits. The certificate shall clearly state
who the provider is, the coverage amount, the policy number, and when the
policy and provisions provided are in effect. Said policy shall be in effect for
the duration of this Agreement. The policy shall name the City of Yakima, its
elected officials, officers, agents, and employees as additional insureds, and
shall contain a clause that the insurer will not cancel or change the insurance
without first giving the City thirty (30) calendar days prior written notice. The
insurance shall be with an insurance company or companies rated A -VII or
higher in Best's Guide.
Plan Sponsor Agreement. 11/2014 5
c. Professional Liability Insurance. Before this Agreement is fully executed by
the parties, Health Advocate shall provide the City with a certificate of
insurance as evidence of Professional Errors and Omissions Liability
Insurance with coverage of at least Five Million Dollars ($5,000,000.00) per
occurrence and an annual aggregate limit of at least Five Million Dollars
($5,000,000.00). The certificate shall clearly state who the provider is, the
amount of coverage, the policy number, and when the policy and provisions
provided are in effect. The insurance shall be with an insurance company
rated A -VII or higher in Best's Guide. If the policy is on a claims made basis,
the retroactive date of the insurance policy shall be on or before the inception
date of the Agreement, or shall provide full prior acts. The insurance coverage
shall remain in effect during the term of this Agreement and for a minimum of
three (3) years following the termination of this Agreement.
8. General:
a. Binding Agreement. This Agreement shall be fully binding upon and inure to
the benefit of the legal representatives, successors in interest and permitted
assigns of the Parties hereto.
b. Entire Understanding. This Agreement, along with its attachments, constitutes
the entire Agreement between the Parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous arrangements,
understandings, negotiations, and discussions of the Parties with respect to
the subject matter hereof, whether written or oral; and there are no warranties,
representations, or other agreements between the Parties in connection with
the subject matter hereof, except as specifically set forth herein.
c. Amendments to this Agreement. This Agreement may be amended only by the
mutual written consent and agreement of the Parties. In addition, upon the
enactment of any law or final regulation affecting the use or disclosure of
Protected Health Information, or the publication of any definitive decision of a
court of the United States or any state relating to any such law or the
publication of any definitive interpretive policy or definitive opinion of any
governmental agency charged with the enforcement of any such law or
regulation, the Parties shall agree to amend this Agreement in such manner as
necessary to comply with such law or regulation.
d. No Third Party Beneficiary. Nothing in this Agreement shall be construed to
give any person or entity other than the Parties any legal or equitable claim,
right, or remedy; rather this Agreement is intended to be for the sole and
exclusive benefit of the Parties.
Plan Sponsor Agreement. 11/2014 6
e. Assignability. Neither Party may assign its rights or obligations under this
Agreement without the prior written consent of the other Party, which consent
may be withheld in the other Party's sole discretion, except that this
Agreement may be assigned by either Party without such prior written
consent:
i. to an affiliate of the assigning Party; or
ii. to an entity that merges with or acquires the business or stock of such
Party to which this Agreement relates. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of, and be
enforceable by the Parties hereto and their respective successors and
assigns.
f. Relationship of the Parties. This Agreement does not, nor is it intended to,
create a relationship of joint venture, principal and agent or partnership
between the Parties. The relationship between the Parties is and shall be that
of an independent contractor. Nothing in this Agreement shall create or be
construed to create the relationship of employer and employee. Each Party
acknowledges that it shall have no authority to obligate or bind the other Party
in any way.
g. Governing Law and Venue. This Agreement shall be governed by the laws of
the State of Washington, without regard to the choice of law doctrine or the
conflicts of law principles of any other jurisdiction to the contrary. However, the
Parties agree that, at least 45 days prior to initiating any litigation or complaint
under this Agreement, they shall hold good faith informal dispute resolution
meetings at a mutually agreed upon location.
h. Dispute Resolution. The Parties agree that in the event of a dispute or alleged
breach they will work together in good faith to resolve the matter internally by
escalating it to higher levels of management and, if necessary, to use a
mutually agreed upon alternative dispute resolution mechanism prior to
resorting to litigation.
i. The Health Advocate Trademark. Client recognizes that the "Health Advocate"
trademark is the sole and exclusive property of Health Advocate and will take
all reasonable and appropriate measures to avoid any actions that would harm
such mark. Client is not authorized to prepare or distribute any promotional or
descriptive material relating to this Agreement or the Services, other than for
identification and /or distribution of promotional and descriptive materials,
without the prior written approval of Health Advocate. However, once consent
for particular language is granted, as to Client, it need not be requested for the
same language, again.
Plan Sponsor Agreement. 11/2014 7
j. Notices. All notices, demands, solicitations of consent or approval and other
communications hereunder required or permitted shall be in writing and shall
be deemed to have been given when: (i.) personally delivered; (ii.) upon the
date documented as being received when sent by facsimile or other electronic
transmission; (iii.) five (5) business days after the date when deposited in the
United States mail, sent postage prepaid or by registered or certified mail,
return receipt requested; or (iv.) upon the date documented as being received
when sent by private courier addressed as follows:
For Client:
Tony O'Rourke, City Manager
City of Yakima
129 N. Second Street
Yakima, WA 98901
Tel. No.: ( ) -
Fax No.: ( ) -
E-mail:
For Health Advocate:
Wendi Thomas, S.V.P., Account Management
Health Advocate, Inc.
3043 Walton Road
Plymouth Meeting, PA 19462
Tel. No.: (610) 397 -7591
Fax No.: (610) 825 -7776
E- mail: wthomasPhealthadvocate.com
Either Party may change its address for the receipt of notices hereunder by
giving the other Party written notice, as prescribed herein, of that new address.
k. Member Awareness. Client agrees to engage in ongoing communication with
its employees to promote the Health Advocate Service.
Plan Sponsor Agreement. 11/2014 8
I. Non - Solicitation. During the Initial and any renewal Term of this Agreement
and for a period of one (1) year following the date of termination or non -
renewal hereof, Client shall not knowingly hire, solicit, or attempt to solicit the
services of any current employee of Health Advocate without the prior written
consent of Health Advocate. Violation of this provision shall entitle Health
Advocate to receive from Client, as liquidated damages, an amount equal to
two hundred percent (200 %) of the solicited person's annual compensation.
This covenant against solicitation shall not be construed to prevent "blind"
advertisements or mailings that are directed to the public through the use of
newspaper, television, radio or the internet.
m. Limitation of Authority. Neither Party shall obligate the other Party, nor make,
alter or waive any of the terms or conditions of any of the other Party's forms,
policies, contracts or advertising materials, except to the extent authorized in
writing by the other Party. Neither Party shall hold itself out as an employee,
partner or officer of the other Party, nor as an agent of the other Party or in
any other manner, or for any other purpose than is set forth in this Agreement.
n. Survival of Certain Obligations. Any obligations set forth in this Agreement that
by their nature should be continuous and survive any termination or non -
renewal of this Agreement including, but not limited to, the obligations
regarding confidentiality and indemnification shall be continuous and shall
survive any termination or non - renewal of this Agreement.
o. Separability. Each provision of this Agreement shall be considered separable
and if any provision or provisions of this Agreement shall be held to be invalid
or unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this Agreement is
invalid or unenforceable, but that by limiting such provision, it would become
valid and enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
p. No Waiver of Rights, Powers and /or Remedies. The failure or delay of either
Party hereto in exercising or enforcing any right, power or remedy under this
Agreement, and no course of dealing between the Parties hereto, shall be
construed as a waiver or limitation of that Party's right to subsequently enforce
and compel strict compliance with every provision of this Agreement.
q. Reserved Rights. Health Advocate explicitly reserves the right to discontinue
or withdraw from sale, modify, change, or amend any product, program or
Service described in this Agreement, if it is determined by Health Advocate, in
its sole discretion, to be necessary to do so based, for example, on a change
in the legislative or regulatory environment in which Health Advocate operates.
Plan Sponsor Agreement. 11/2014 g
r. Titles. All section titles or captions contained in this Agreement are for
convenience only and will in no way modify or affect the meaning or
construction of any of the terms or provisions hereof and shall not be deemed
part of the text of this Agreement.
s. Interpretation. The Parties hereto acknowledge and agree that (i) the rule of
construction providing that any ambiguities are resolved against the drafting
Party will not apply in interpreting the terms and provisions of this Agreement;
and (ii) the terms and provisions of this Agreement will be construed fairly as
to all Parties hereto and not in favor of or against a Party, regardless of which
Party was generally responsible for the preparation of this Agreement.
t. Force Maleure. Neither Party hereto shall have any liability for delay or non-
fulfillment of any terms of this Agreement caused by any cause not within such
Party's reasonable control (but excluding financial inability) such as an act of
God, war, riots or civil disturbance, strikes, accident, fire, transportation
conditions, labor and /or material shortages, governmental controls, regulations
and permits and /or embargoes.
Plan Sponsor Agreement. 11/2014 10
u. Counterparts. This Agreement may be signed in counterparts, which together
will constitute one Agreement.
9. DISCLAIMER:
Client acknowledges its . understanding that Health Advocate provides
administrative, informational and referral type services, through its employees.
Health Advocate does not provide health insurance or medical services, nor does
it recommend treatment. Consequently, all medical services are provided by
independent healthcare practitioners, who are not employees or agents of Health
Advocate.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have
caused this Agreement to be signed by their duly authorized representatives.
For City of Yakima:
Signer 4 4-j
Name: Tony O'Rourke
CITY CONTRACT NO /5----00/
Title: City Manager RESOLUTION NO: , / E MA
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Dated:
For Health Advocate, Inc.:
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Signed:
Name: KcM. Regey
Title: vir� Presi" e -I f �PraC� o�Sa1eS
Dated: 1.2-I I 1
Plan Sponsor Agreement. 11/2014 11
EXHIBIT "A"
HEALTH ADVOCATE SERVICES
The Personal Health Advocate is typically a Registered Nurse or a person
experienced in benefits and administrative issues assigned to serve the Member
as soon as he /she calls to access the Services. Personal Health Advocates
handle a range of issues as Members seek healthcare services and interact with
providers and insurers.
• Care Coordination: The Personal Health Advocate helps Members
coordinate care among physicians and medical institutions.
• Medical Director and Administrative Support: Physicians and
administrative staff support the Personal Health Advocates.
Benefits Advantage TM
• Claims Assistance: Personal Health Advocates help sort out and solve
claims and related paperwork problems and assist Members with
coverage and benefits issues.
• Fee Negotiation: When necessary, Health Advocate can attempt to
negotiate fees with healthcare providers and review questionable bills to
catch duplicative and /or erroneous charges.
• Grievance Advice: As appropriate, Health Advocate will provide advice
and /or assistance to Members when filing a complaint or grievance with
their health insurer.
• Coverage AdvantageTM: The Personal Health Advocate can help
Members through the coverage review process arid, when necessary, can
also assist in identifying alternative coverage options.
• RxAdvocateTM: The Personal Health Advocate can assist Members with
prescription drug issues including formulary and benefit questions.
Physician Locator: Personal Health Advocates can help Members identify
physicians, hospitals, dentists and other healthcare providers for needed
services.
Advocates of Excellence: Personal Health Advocates can help identify leading
medical institutions, Centers of Excellence and medical providers to assist
Members in need of complex medical care. Our Personal Health Advocates can
also help Members schedule appointments with these providers, as required.
Plan Sponsor Agreement. 11/2014 12
Health Advocate CareQuest: This Service locates resources and makes
arrangements for Members in need of special services that typically fall outside
the realm of traditional healthcare benefits. The Member is responsible for
payment for any services that they use beyond those covered by their health
insurance plan.
Plan Sponsor Agreement. 11/2014 13
EXHIBIT "B"
BUSINESS ASSOCIATE AGREEMENT
The Parties hereby agree as follows:
1. Definitions:
a. General Definitions. Terms used but not otherwise defined in this Agreement, shall
have the same meaning as those terms as set forth in the HIPAA Regulations, as
defined below.
b. Specific Definitions.
(i) "Business Associate" shall mean Health Advocate, Inc. or any of its affiliated
entities.
(ii) "Breach" shall have the same meaning given to such term in 45 C.F.R. § 164.402.
(iii) "Covered Entity" shall mean all group health plans of Client and its Affiliates for
which Business Associate provides services to or on behalf of, individually
and /or collectively.
(iv) "HIPAA" shall mean the Health Insurance Portability and Accountability Act of
1996, as amended from time to time and its implementing regulations (45
C.F.R. Parts 160 -64) and the requirements of the Health Information
Technology for Economic and Clinical Health Act, as incorporated in the
American Recovery and Reinvestment Act of 2009 (the "HITECH Act "), that
are applicable to business associates, along with any guidance and /or
regulations issued by DHHS, in effect or as amended.
(v) "HIPAA Regulations" shall mean the regulations issued by the U.S. Department
of Health and Human Services Office for Civil Rights with respect to HIPAA
privacy, security, and enforcement, as set forth in 45 CFR Parts 160 and 164, in
effect or as amended.
(vi) "Individual" shall have the same meaning as the term "individual" in 45 CFR §
160.103 and shall include a person who qualifies as a personal representative
in accordance with 45 CFR § 164.502(g).
(vii) "Protected Health Information" and electronic Protected Health Information
(together "PHI ") shall have the same meaning as the term "protected health
information" in 45 CFR § 160.103, limited to the information created or received
by Business Associate from or on behalf of Client, in connection with the
performance of the Services provided pursuant to the Plan Sponsor or Services
Agreement entered into by and between Business Associate and Client, to which
this BAA relates. PHI does not include health information that has been de-
identified in accordance with the standards for de- identification provided for in the
Privacy Rule.
Plan Sponsor Agreement. 11/2014 14
(viii) "Privacy Rule" shall mean the Standards for Privacy of Individually
Identifiable Health Information at 45 CFR part 160 and part 164, subparts A
and E.
(ix) "Security Incident" shall have the same meaning given to such term in 45 C.F. R.
§ 164.304, but shall not include (i) unsuccessful attempts to penetrate computer
networks or servers maintained by Business Associate; and (ii) immaterial
incidents that occur on a routine basis, such as general "pinging" or "denials of
service."
(x) "Security Rule" shall mean the Standards for Securing PHI and ePHI as required
by 45 CFR §164.302- 164.318.
(xi) "Unsecured protected health information" refers to PHI that is not rendered
unusable, unreadable, or indecipherable to unauthorized individuals through the
use of Encryption or destruction.
(xii)" Required by Law" shall have the same meaning as the term "required by law" in
45 CFR § 164.103.
2. Obligations and Activities of Business Associate:
a. Business Associate shall not use or further disclose PHI other than as permitted
or required pursuant to the underlying Health Advocate Services Agreement and
any Addendum thereto, by this BAA, as Required or permitted by Law, or as
directed by the Client.
b. Unless otherwise limited, in addition to any other uses and /or disclosures
permitted or authorized by this Agreement or required by law, Business
Associate may, use the PHI in its possession for the proper management and
administration and to fulfill any legal responsibilities of the Business associate,
de- identify any and all PHI created or received by it under this Agreement:
provided that the de- identification conforms to the requirements of the Privacy
Rule, and may aggregate the PHI with that of other covered entities for the
purpse of providing Client with data analyses relating to the Health Care
Operations of Client ; however, notwithstanding the foregoing Business
Associate may not disclose the PHI of one client or covered entity to another of
the clients or covered entities involved.
c. Business Associate shall use appropriate safeguards to prevent use or
disclosure of PHI as provided for by this BAA.
d. Business Associate shall mitigate, to the extent practicable, any harmful effect
that is known to Business Associate of a use or disclosure of PHI by Business
Associate in violation of the requirements of this BAA.
e. Business Associate shall report to the Client any Breach or Security Incident of
Unsecured PHI of which it becomes aware to the extent required under any
applicable breach notification statute, no later than 10 calendar days following
the date it becomes aware of such Incident.. Business Associate's report shall
include all information indicated in 45 CFR § 164.410(c).
Plan Sponsor Agreement. 11/2014 15
f. Business Associate shall ensure that any agent, including a subcontractor, to
whom it provides PHI agrees in writing to the same restrictions and conditions
that apply to Business Associate with respect to such information. To the extent
that Company provides Electronic Protected Health Information to any agent or
subcontractor, it will require the agent or subcontractor to implement reasonable
safeguards to protect the Electronic Protected Health Information consistent with
the terms of this Agreement.
g. Business Associate shall document disclosures of PHI and information related to
such disclosures as would be required for Client to respond to a request by an
Individual for an accounting of disclosures of PHI in accordance with 45 CFR
§ 164.528.
h. Business Associate shall make its internal practices, books, and records,
including policies and procedures and PHI, relating to the use and disclosure of
PHI received from, or created or received by Business Associate on behalf of,
Client available to the Client, or at the request of the Client, to the Secretary in the
time and manner designated by the Client or the Secretary, for purposes of the
Secretary determining Client's compliance with the HIP,AA Regulations.
i. Business Associate shall provide to Client or an Individual an accounting of
disclosures of PHI in accordance with 45 CFR § 164.528, in the time and manner
designated by Client.
j. Business Associate shall retain all documentation indicated in 45 CFR §
164.5300)(1) for the retention period in accordance with 45 CFR § 164.530(j)(2).
k. Business Associate shall determine the Minimum Necessary type and amount of
PHI required to perform its services and will comply with 45 CFR §§ 164.502(b)
and 164.514(d).
I. To ensure compliance with the Security Standards for the Protection of Electronic
Protected Health Information at 45 CFR Parts 160 and 164 Subpart C, Business
Associate shall:
i. implement administrative, physical and technical safeguards that
reasonably and appropriately protect the confidentiality, integrity, and
availability of electronic PHI that it creates, receives, maintains, or
transmits on behalf of the Client;
ii. ensure that any agent, including a subcontractor, to whom Business
Associate provides such electronic PHI agrees to enter into an
Agreement with terms consistent with or substantially similar to those
enumerated herein;
iii. ensure that any agent, including a subcontractor, to whom Business
Associate provides PHI shall implement reasonable and appropriate
safeguards to protect it;
iv. report immediately to the Client any successful unauthorized access,
use, disclosure, modification, or destruction of electronic PHI or
interference with system operations in an information system of which
Business Associate becomes aware; and
Plan Sponsor Agreement. 11/2014 16
v. report to the Client the aggregate number of unauthorized access, use,
disclosure, modification, or destruction of electronic PHI, or interference
with system operations in an information system of which Business
Associate becomes aware, no later than thirty (30) calendar days after
discovery of the attempt(s).
m. Business Associate shall comply with all security and privacy provisions of 45
CFR Part 164, and the requirements of 45 CFR § 164.504(e)(1)(ii), and shall
further comply with §13401 of the American Recovery and Reinvestment Act of
2009.
3. Permitted or Required Uses and Disclosures by Business Associate:
a. General Use and Disclosure. Except as otherwise limited in the Agreement,
Business Associate may use or disclose PHI to perform functions, activities, or
services for, or on behalf of, Client as specified in the underlying Agreement,
provided that such use or disclosure of PHI would not violate the Privacy Rule,
including the Minimum Necessary requirement.
b. Additional Use and Disclosure.
(i) Except as otherwise limited in this Agreement, Business Associate may use or
disclose PHI for the proper management and administration of the Business
Associate's business or to carry out the legal responsibilities of the Business
Associate consistent with the provisions of 45 CFR § 164.504(e)(4)(i) and (ii).
Business Associate may only disclose PHI for such purposes if:
1) such disclosures are Required by Law; or
2) Business Associate obtains reasonable assurances from the
person to whom the information is disclosed that it will remain
confidential and be 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 the Business Associate of any instances of
which it is aware in which the confidentiality of the information has
been breached.
(ii) Except as otherwise limited in this BAA, Business Associate may use PHI to
provide Data Aggregation services to Client as permitted by 45 CFR §
164.504(e)(2)(i)(B).
(iii) Business Associate may use or disclose PHI to the extent and for purposes
authorized by an Individual.
(iv) Business Associate may use PHI to report violations of law to appropriate
Federal and state authorities, consistent with 45 CFR § 164.502(j)(1).
(v) Business Associate must share PHI with Client for permitted purposes, such
as for audits performed by or on behalf of Client.
Plan Sponsor Agreement. 11/2014 17
4. Obligations of Client:
a. Client shall provide Business Associate with any changes in, or revocation of,
Authorization by Individual or his or her personal representative to use or disclose
PHI, if such changes affect Business Associate's uses or disclosures of PHI.
b. Client shall notify Business Associate of any restriction to the use or disclosure of
PHI that Client has agreed to in accordance with 45 CFR § 164.522, if such
changes affect Business Associate's uses or disclosures of PHI.
c. In the event that Client requires Business Associate to share, receive or disclose
PHI to another vendor for purposes of fulfilling its obligations pursuant to the
Health Advocate Services Agreement, Client agrees to assist Business Associate
in obtaining a confidentiality agreement with such vendor.
5. Permissible Requests by Client: Client shall not request, Business Associate to use
or disclose PHI in any manner that would not be permissible under the Privacy Rule if
done by Client, except as provided in Sections 3 (b)(i) and (ii) of this BAA.
6. Term and Termination:
a. Term. The Terms and Conditions set forth in this Business Associate Agreement
shall commence as of the Effective Date of the Plan Sponsor Agreement or
Services Agreement, as the case may be, to which this Business Associate
Agreement relates and shall terminate when all of the PHI provided by or on
behalf of Client to Business Associate, or created or received by Business
Associate on behalf of Client, is destroyed or returned to Client, or, if it is
infeasible to return or destroy PHI, protections are extended to such information,
in accordance with paragraph c of this Section 6.
b. Termination for Cause. Upon Client's knowledge of a material breach by Business
Associate of a provision of this BAA, Client shall provide an opportunity for
Business Associate to cure the breach or end the violation. If Business Associate
does not cure the breach or end the violation within the time specified by Client, or
if Business Associate has breached a material term of this Agreement and cure is
not possible, Client may terminate Business Associate's services upon written
notice to Business Associate.
c. Effect of Termination.
1) Except as provided in paragraph (c)(ii) of this Section 6, upon cancellation
of Business Associate's services or termination of the Agreement for any
reason, Business Associate shall return or destroy all PHI received from
Client, or created or received by Business Associate on behalf of Client.
This provision shall apply to PHI that is in the possession of
subcontractors or agents of Business Associate.
Plan Sponsor Agreement. 11/2014 18
2) In the event that Business Associate determines that returning or
destroying the PHI is infeasible, Business Associate shall extend the
protections of the Agreement to such PHI and shall limit further use or
disclosure of the PHI to those purposes that make the return or destruction
infeasible, for so long as Business Associate maintains such PHI.
3) Notwithstanding the expiration, cancellation or termination of Business
Associate's services or this BAA, Business Associate shall retain all
required documentation for the retention period as set forth in Section 2(k)
of this Agreement.
7. Miscellaneous:
a. Regulatory References. A reference in this BAA to a section in the HIPAA
Regulations means the section as in effect or as amended, and for which
compliance is required.
b. No Third Party Beneficiary. This BAA is intended for the sole benefit of Business
Associate and Client. Nothing expressed or implied in this Agreement is intended
to confer, nor shall anything herein confer, upon any person other than the
parties and the respective successors or assignees of the parties, any rights,
remedies, obligations, or liabilities whatsoever, except to the extent that the
HIPAA Regulations validly requires the Secretary or any other person to be a
third party beneficiary to this Agreement.
c. Interpretation.
(i) Any ambiguity in the Agreement shall be resolved in favor of a meaning that
permits Client to comply with the HIPAA Regulations.
(ii) In the event of an inconsistency between the provisions of this Agreement and
the HIPAA Regulations, as may be amended from time to time, as a result of
interpretation by HHS, a court of competent jurisdiction, or another regulatory
agency with authority to enforce HIPAA, the interpretation of HHS, or such
court or other regulatory agency shall prevail.
(iii) In the event provisions of this Agreement differ from those mandated by the
HIPAA Regulations but are nonetheless permitted by the HIPAA Regulations,
the provisions of this Agreement shall control.
Plan Sponsor Agreement. 11/2014 19