Business Associate Agreement

Business Associate Agreement

This Business Associate Agreement (“BAA”) supplements and is made a part of the Master Software and Service Agreement (“Agreement”) between Triyam, Inc. (“Business Associate”) and Client (“Covered Entity”).

In consideration of the mutual covenants contained in this Agreement and intending to be legally bound, the parties agree as follows:

Definitions:

• Catch-all definition: The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules of United States of America: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Required By Law, Secretary, Security Incident, Unsecured Protected Health Information, and Use.
• Covered Entity.  “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Client and all customers of Client.
• Business Associate.  “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Triyam, Inc..
• Sub-Business Associates. “Sub-Business Associates” are those individuals or entities who are contracted by the Business Associate to work on the projects of the Business Associate and/or the Covered Entity.
• Protected Health Information. “Protected Health Information” shall generally have the same meaning as the term “Protected Health Information” in HIPAA rules, and in the context of this agreement will include additional personal financial information such as Credit card data.
• HIPAA Rules.  “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164 of United States of America.

Obligations and Activities of Business Associate:

Business Associate agrees to:

• Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
• Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;
• Mitigate, to the extent practicable and within the limits of liability established in the Agreement, or in the absence of a limitation of liability in the Agreement, a maximum of twelve (12) months of charges paid by Client to Business Associate, 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 Agreement and any harmful effect to Client that is known to Business Associate of a Breach of Unsecured PHI or Use or Disclosure of PHI by Business Associate as a result of Business Associate’s Breach of this This is Tryiam’s maximum liability for any and all claims, causes of action, fines, penalties, damages, costs or expenses arising hereunder;
• Immediately report to Covered Entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware; such reports shall include (i) the identification (if known) of each Individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used or disclosed during such Breach, and (ii) any other available information (to the extent known) Covered Entity is required to include in notification to the Individual under 45 CFR § 164.404(c) such as a brief description of the incident and the nature of the information disclosed. Covered Entity shall report any Breach of Unsecured PHI to Individuals, the Secretary, the HHS Office for Civil Rights and/or the media as Required by Law;
• In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any sub-Business Associates that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
• Make available protected health information in a designated record set to the Business associate and/or Covered entity or “individual or the individual’s designee” as necessary to satisfy business associate and/or covered entity’s obligations under 45 CFR 164.524;
• Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the business associate and/or covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy business associate and/or covered entity’s obligations under 45 CFR 164.526;
• Make available the information required to provide an accounting of disclosures to the Business associate and/or Covered entity or “individual or the individual’s designee” as necessary to satisfy business associates or covered entity’s obligations under 45 CFR 164.528;
• To the extent the Business Associate is to carry out one or more of business associates and/or covered entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the business associate and/or covered entity in the performance of such obligation(s);
• Make its internal practices, books, and records including policies and procedures and protected health information, relating to the user and disclosure of protected health information received from, or created or received by Business Associate on behalf of Business associate and/or covered entity available to the Secretary for purposes of determining compliance with the HIPAA Rules;
• To the extent the Business Associate is to carry out one or more of covered entity’s obligations under the HIPAA privacy regulations, comply with the requirements of the privacy regulations that apply to the business associate and/or covered entity in the performance of such obligations;
• Implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of any electronic protected health information that it creates, receives, maintains or transmits on behalf of the business associate and/or covered entity, and otherwise comply with the HIPAA security regulations with respect to such electronic protected health information, to prevent uses or disclosures of Protected health information other than as provided for by this agreement; and
• Report to business associate and/or covered entity any material attempted or successful unauthorized access, use, disclosure, modification or destruction of information or interference with system operations in an information system.

 Permitted Uses and Disclosures by Business associate and/or Covered entity

• General user and disclosure provisions
  1. Except as otherwise limited in this agreement, Business Associate may use or disclose protected health information to perform functions, activities or services for or on behalf of business associate and/or covered entity pursuant to the underlying service agreement between the parties, provided that such use or disclosure would not violate the privacy regulations if done by business associate and/or covered entity or the minimum necessary policies and procedures of the business associate and/or covered entity.
• Specific use and disclosure provisions
  1. Except as otherwise limited in this agreement, Business Associates may use protected health information for the proper management and administration of the business associate and/or covered entity or to carry out the legal responsibilities of the Business Associate.
  2. Except as otherwise limited in this agreement, Business Associates 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 be used or further disclosed only as required by law or for the purpose of 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. Except as otherwise limited in this agreement, Business Associate may use protected health information to provider data aggregation services to business associate and/or covered entity as permitted by 45 CFR Part 164.504(e)(2)(i)(B).
  4. Business associate and/or Covered entity may use protected health information to report violations of law to appropriate federal and state authorities after discussing with Business associate and/or Covered entity consistent with 45 CFR Part 164.502(j)(1).
  5. Business associate and/or Covered entity agrees to make uses and disclosures and requests for protected health information consistent with business associate and or covered entity’s minimum necessary policies and procedures.

 Obligations of Covered Entity

Covered Entity shall not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity (except to the extent Business Associate performs Data Aggregation or for the management and administration and legal responsibilities of the Business Associate). Notwithstanding anything to the contrary herein, Covered Entity acknowledges that any Use or Disclosure of PHI made by Business Associate at the request of Covered Entity is made in reliance that such request is permissible and Covered Entity is requesting the Minimum Necessary to accomplish the intended purpose of the Use or Disclosure or request. Covered Entity shall indemnify Business Associate for any damages, costs, fines, or penalties incurred by reason of actions taken by Business Associate pursuant to Covered Entity instructions or requests that are in breach of this provision or applicable law.

• Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business Associate’s Use or Disclosure of
• Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by an Individual to Use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of
• Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR §164.522, to the extent that such restriction may affect Business Associate’s Use or Disclosure of

Term and Termination

• Term. The Term of this Agreement shall be effective as of the effective date of the underlying services agreement between the parties and shall terminate upon the earlier of
  • Expiration or termination of the underlying services agreement or
  • Termination of this agreement for cause by the Covered Entity as authorized by subsection (b) below
• Termination for Cause. Upon Covered Entity’s knowledge of a material breach by the Business Associate, Covered Entity shall either:
  • Provide an opportunity for Business Associate to cure the breach or end the violation and terminate this agreement if Business associate and/or Covered entity does not cure the breach or end the violation within the time specified by the business associate or
  • Immediately terminate this agreement if the business associate has breached a material term of this agreement and cure is not possible
• Effect of Termination.
  • Upon termination of this Agreement for any reason, Business Associate shall return to Covered Entity or, if agreed to by Covered Entity, destroy all protected health information received from business associate and/or covered entity, or created, maintained, or received by Business Associate on behalf of business associate and/or covered entity, that the Business Associate still maintains in any form.  This provision shall apply to the protected health information that is in the possession of Business Associates or sub-Business Associates or agents of Business Associates or sub-Business Associates. Business Associate and all their agents shall retain no copies of the protected health information.
  • In the event that Business Associate determines that returning or destroying the protected health information is not feasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction of protected health information infeasible. Upon mutual agreement of the parties that return or destruction of protected health information is not feasible, Business Associate shall extend the protections of this agreement 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.
  • Upon termination of this Agreement for any reason, Business Associate, with respect to protected health information received from covered entity, or created, maintained, or received by Business Associate on behalf of covered entity, shall:

1. 1. Retain only that protected health information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
   2. Return to business associate and/or covered entity or, if agreed to by business associate, destroy the remaining protected health information that the Business Associate still maintains in any form;
   3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as Business Associate retains the protected health information;
   4. Not use or disclose the protected health information retained by Business Associate other than for the purposes for which such protected health information was retained and subject to the same conditions set out by this agreement which applied prior to termination; and
   5. Return to business associate and/or covered entity or, if agreed to by business associate and/or covered entity, destroy the protected health information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

The obligations of Business Associate under this subsection (c)3) shall survive the termination of this Agreement.

Miscellaneous

• Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
• Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
• Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.