This Business Associate Agreement (the “BAA”) is between West Interactive Services Corporation (“WISC”) and the Client who purchases Services (each as defined in the agreement(s) (the “Agreement”) between WISC and Client) from WISC. This BAA is incorporated herein by reference into the Agreement.
1.1 Catch-all definition:
Terms used, but not otherwise defined, in this BAA shall have the same meaning as those terms in the Privacy Rule (as defined below).
1.2 Specific definitions:
a. “Business Associate” shall mean WISC.
b. “Covered Entity” shall mean Client.
c. “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).
d. “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.
e. “Protected Health Information” 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 Covered Entity.
f. “Required By Law” shall have the same meaning as the term “required by law” in 45 CFR § 164.103.
g. “Security Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subpart C.
h. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his designee.
2. Obligations and Activities of Business Associate
2.1. Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by the Agreement, the BAA or as Required By Law.
2.2. Business Associate agrees to use appropriate safeguards and comply, where applicable, with the Security Rule 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.
2.3. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this BAA.
2.4. Business Associate agrees to promptly, but in no case later than fifteen (15) business days, report to Covered Entity any use or disclosure of the Protected Health Information not provided for by this BAA of which it becomes aware.
2.5. Business Associate agrees to ensure that any agent, including a subcontractor, that creates, maintains, or transmits Protected Health Information on behalf of Business Associate, agrees to the same restrictions and conditions that apply to Business Associate with respect to such information.
2.6. Business Associate agrees it is not in compliance with the Privacy Rule and this BAA if it knows of a material breach or violation of a subcontractor’s obligation to the Business Associate and under the Privacy Rule unless the Business Associate takes reasonable steps to cure the breach or end the violation, as applicable, and, if such steps are unsuccessful, terminates the contract or arrangement with the subcontractor, if feasible.
2.7. If applicable, Business Associate agrees to, at the written request of Covered Entity and in no case later than seven (7) business days, provide access to Protected Health Information 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.
2.8. If applicable, Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR § 164.526 at the written request of Covered Entity or an Individual, but in no case later than seven (7) business days.
2.9. Business Associate agrees to make its internal practices, books, and records, including policies and procedures, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Covered Entity, or to the Secretary, as agreed upon by the parties or designated by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule.
2.10. Business Associate agrees to document such disclosures of Protected Health Information 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 Protected Health Information in accordance with 45 CFR § 164.528.
2.11. If applicable, Business Associate agrees to provide to Covered Entity or an Individual, in no case later than fifteen (15) business days, information collected in accordance with the above Sections of this BAA, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528.
3. Permitted Uses and Disclosures by Business Associate
3.1. Except as otherwise limited in this BAA, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity.
3.2. Except as otherwise limited in this BAA, Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
3.3. Except as otherwise limited in this BAA, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate, provided that disclosures are Required By Law, or Business Associate obtains 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 the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
3.4. Except as otherwise limited in this BAA, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B).
3.5. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with § 164.502(j)(1).
4. Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions
4.1. Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of Protected Health Information.
4.2. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information.
4.3. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.
5. Permissible Requests by Covered Entity
Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.
6. Term and Termination
6.1. The term of this BAA shall be effective upon first disclosure of Protected Health Information to BAA by Covered Entity, and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.
6.2. Upon Covered Entity’s knowledge of a material breach or violation of the Business Associate’s obligation under this BAA, Covered Entity shall either:
- (i) Provide an opportunity for Business Associate to cure the breach or end the violation and terminate this BAA if Business Associate does not cure the breach or end the violation within thirty (30) days of written notice; or
- (ii) Immediately terminate this BAA if Business Associate has breached a material term of this BAA and cure is not possible.
7. Effect of Termination
7.1. Except as provided in this BAA, upon termination of this BAA, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate. Except as provided in this BAA, Business Associate shall retain no copies of the Protected Health Information.
7.2. In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. In such case, Business Associate shall extend the protections of this BAA to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.
8.1. A reference in this BAA to a section in the Privacy Rule or Security Rule means the section as in effect or as amended.
8.2. The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for Covered Entity and Business Associate to comply with the requirements of the Privacy Rule, Security Rule and the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, as applicable.
8.3. The respective rights and obligations of Business Associate under the “Effect of Termination” Section of this BAA shall survive the termination of this BAA.
8.4. Any ambiguity in this BAA shall be resolved to permit Covered Entity and Business Associate to comply with the Privacy Rule and Security Rule, as applicable.
8.5. The parties acknowledge that Protected Health Information is unique and valuable, and that disclosure in breach of this BAA will result in irreparable injury to the parties for which monetary damages alone would not be an adequate remedy. Therefore, the parties agree that in the event of a breach or threatened breach of confidentiality, the parties shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages. No forbearance, failure or delay in exercising any right, power or privilege is waiver thereof, nor does any single or partial exercise thereof preclude any other or future exercise thereof, or the exercise of any other right, power or privilege.
8.6. Pursuant to the limitations of liability set forth in the Agreement, Business Associate shall indemnify and hold harmless Covered Entity from and against any and all third party claims, losses, liabilities, reasonable costs and other expenses resulting from, or relating to, the acts and omissions of Business Associate in performance of its obligations hereunder. The foregoing limitations of liability shall not be applicable to claims arising out of violations of intellectual property rights, gross negligence, willful misconduct, or fraud.