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HomeMy WebLinkAboutHIPAA AgreementHIPAA Business Associate Agreement BeneTrac Clients This HIPAA Business Associate Agreement ("Business Associate Agreement") supplements and is made a part of any agreement ("Agreement") between the parties and is entered into by and between Paychex Benefit Technologies, Inc. dba BeneTrac.com ("Business Associate") a California corporation and the employer/client identified on the signatory page ("Employer") on behalf of the Health Plan(s) identified in this agreement ("Covered Entity"). This Business Associate Agreement shall'be effective upon execution of this Agreement by Employer in its capacity as the plan sponsor. RECITALS Whereas, the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996 and related regulations require that contracts between covered entities and entities known as business associates comply with enumerated standards and requirements; Whereas, the Employer is the authorized user of the BeneTrac.com service; and in such capacity, the Employer executes this Business Associate Agreement on behalf of and in accordance with the Health Plan(s); Whereas, Business Associate's interaction with and administration of the Health Plan(s), its business associates, the Employer and their agents makes the Business Associate a business associate of the Health Plan(s) as described under or defined under HIPAA; Whereas, the purpose of this Business Associate Agreement is to satisfy the Business Associates contract requirements of HIPAA and Title XIII of Division A of the Health Information Technology for Economic and Clinical Health, as amended from time to time. Now therefore, in consideration of the mutual promises below, the Employer, on behalf of the Health Plan(s), and Business Associate agree as follows: GENERAL DEFINITIONS a. Breach — "Breach" shall mean the unauthorized acquisition, access, use, or disclosure of protected health information which compromises the security or privacy of such information, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information. b. Business Associate - "Business Associate" shall mean BeneTrac.com. c. Covered Entity - "Covered Entity" shall mean the Health Plan(s) and/or Employer/plan sponsor identified on the signatory page herein acting on behalf of such Health Plan. d. Designated Record Set — "Designated Record Set" shall have the same meaning as the term "designated record set" in 45 CFR § 164.501, A group of records maintained by or for a covered entity that is: (i) The medical records and billing records about individuals maintained by or for a covered health care provider; (ii) The enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or (iii) Used, in whole or in part, by or for the covered entity to make decisions about individuals. e. HIPAA — "HIPAA" shall mean the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C.A § 1320d et al, 45 C.F. R. Parts 142 and 160 -164, as amended. f. HITECH — "HITECH" shall mean The Health Information Technology for Economic and Clinical Health Act in section 13402 of Title XIII of the American Recovery and Reinvestment Act of 2009, as amended. g. Individual - "Individual" shall have the same meaning as the term "individual" in 45 CFR § 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g). h. Privacy Rule - "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information in 45 CFR, Parts 160 and 164, Subparts A and E. i. Protected Health Information - "Protected Health Information" ("PHI") shall have the same meaning as the term "protected health information" in 45 CFR § 164.501, limited to the information created or received by Business Associate from or on behalf of Covered Entity. PHI does not include and this Business Associate Agreement is not applicable to individually identifiable health information created or received by or disclosed J. to Business Associate in connection with services rendered by Business Associate outside the scope of this Business Associate Agreement. Required By Law - "Required By Law" shall have the same meaning as the term "required by law" in 45 CFR § 164.501. k. Secretary - "Secretary" shall mean the Secretary of the Depaittiient of Health and Human Services or her designee. 1. Security Rule - "Security Rule" shall mean the Security Standards for the Protection of Electronic Protected Health Information in 45 CFR, Parts 160 and 164, Subparts A, C, and D. m. Unsecured Protected Health Information (PHI) — "Unsecured Protected Health Information (PHI)" shall have the same meaning as the term "unsecured protected health information" in 13402(h) of HITECH. n. Terrns used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in the HIPAA and the HITECH Act as amended. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE a. Use Permitted by Law - Business Associate agrees not to use or disclose PHI other than as permitted or required by the Agreement, as permitted or Required By Law, as required or allowed under HIPAA and the HITECH Act or for the proper management and administration of the Services provided by Business Associate pursuant to this Business Associate Agreement. b. Safeguards - Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Agreement and comply with the Privacy Rule and the Security Rule's administrative, physical, and technical safeguard requirements. c. Reporting - Business Associate agrees to report to Covered Entity any breach of unsecured PHI or any use or disclosure of PHI not provided for by this Agreement ("Breach") as soon as administratively reasonable but not longer than 15 calendar days following its discovery of the Breach as set forth in J below. Business Associate agrees to provide Covered Entity with any other available information that the Covered Entity is required to include in the notification under § 164.404(c). d. Agents - Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created by Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such information. e. Access by Covered Entity - Business Associate agrees to provide access, at the request of Covered Entity, and in the time and manner, to PHI 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. f. Amendments to PHI - Business Associate agrees to make any amendment(s) to PHI in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR § 164.526 at the request of Covered Entity or an Individual. g. Access by Secretary - For purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule, Business Associate agrees to make available to the Secretary or entity designated by the Secretary, 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, Covered Entity. h. Disclosures - Business Associate agrees to document such disclosures of PHI 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 PHI in accordance with 45 CFR § 164.528. Accounting - Business Associate agrees to provide to Covered Entity or an Individual, information collected in accordance with this Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528. Privacy Breach Notification- Upon becoming aware of any use or disclosure of PHI that may constitute a Breach ("Disclosure"), Business Associate will investigate and determine whether the Disclosure may pose a significant risk of fmancial, reputational, or other harm to impacted members. Business Associate .will determine if the Disclosure constitutes a Breach and, if so, if the incident falls under any of the exception to the breach notification requirements. Business Associate will provide to Covered Entity written notification that describes the Breach and includes a list of the impacted members of the Covered Entity Health Plan. Business Associate will maintain a log and provide to Covered Entity an annual report of breaches that impact fewer than 500 members. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE Uses to Provide Services Except as otherwise Iimited in this Agreement, Business Associate may use or disclose PHI on behalf of, or to provide services to, Covered Entity for the following purposes, if such use or disclosure of PHI would not violate HIPAA, the HITECH Act or the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity: i. To perform the functions, activities, or services for, on behalf of, the Health Plan as specified in the Agreement, provided that such use or disclosure would not violate HIPAA if done by the Health Plan. ii For the Health Plan's treatment, payment and health care operations as defined and permitted under HIPAA with respect to Business Associate's administration of the Health Plan. iii. For the Business Associate's treatment, payment and health care operations as defined and permitted under HIPAA with respect to Business Associate's administration of the Health Plan. iv. To Business Associate's agents or subcontractor as necessary for Business Associate to perform the services described in the Agreement. v. To the Health Plan or Employer's business associates, agents or subcontractors as requested by the Employer. vi. To provide Data Aggregation services to the Health Plan if mutually agreed upon between Health Plan and Business Associate. vii. As otherwise required or peiinitted by HIPAA, the HITECH Act or federal or state law. viii. To report violations of Iaw to appropriate federal or state authorities, consistent with 45 CFR § 164.502(j)(1). ix. As otherwise requested by the Employer or the Health Plan that is not in violation of HIPAA or the HITECH Act. ADDITIONAL USES AND DISCLOSURES a. Administration - Except as otherwise limited in this Agreement, Business Associate may use PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate. b. Reasonable Assurances - Except as otherwise limited in this Agreement, Business Associate may disclose PHI 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. c. Data - Except as otherwise limited in this Agreement, Business Associate may use PHI to provide Data Aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B). d. Reporting - Business Associate may use PHI to report violations of law to appropriate federal and state authorities, consistent with 45 CFR § 164.5026)(1). OBLIGATIONS OF COVERED ENTITY Plan's Compliance Employer and/or Health Plan, as appropriate, shall be responsible for their compliance with HIPAA's and the HITECH Act's administrative requirements resulting from the Employer and/or Health Plan's activities, if applicable, including, but not limited to, privacy officer designation, training, etc. Employer agrees to perform the following in a timely fashion: i. 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 PHI. ii. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by Individual to use or disclose PHI, to the extent that such changes may affect Business Associate's use or disclosure of PHI. iii. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI 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 PHI. iv Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA, the HITECH Act or the Privacy Rule if done by Covered Entity, except that Business Associate can use such for data aggregation or management and administrative activities of Business Associate. v. Covered Entity must provide required notifications to affected individuals and/or media outlets under § 164.404(a) without reasonable delay, but no later than 60 calendar days following notification from the Business Associate of a breach of Unsecured PHI. DISCLOSURES TO PLAN SPONSOR/EMPLOYER a. Amendment of the Health Plan - Business Associate and Covered Entity, as set forth in this section, agree to allow the Health Plan and/or Business Associate to disclose PHI to the Employer. Employer agrees to identify to Business Associate the Employer's employees, classes of employees, and other persons to whom Business Associate shall disclose PHI. b. Notice of Privacy Practices - If Business Associate will disclose PHI to the Employer pursuant to this section; the Employer represents and warrants that the Health Plan's notice of privacy practices, if applicable, shall advise the individual of such disclosure. c. Disclosure of PHI to Plan Sponsor - The Employer represents and warrants that Business Associate may disclose PHI to the employees, classes of employees, and other persons identified by Employer to carry out plan administration functions. Employer/Plan Sponsor further warrants that requests for disclosure of PHI by Employer/Plan Sponsor employees shall not be for the purpose of employment -related actions or decisions or in connection with any other benefits plan of the Employer. d. Identification of Employees and Other Persons - The Employer agrees that Business Associate may rely upon the most recent list of employees or classes of employees (or update thereof) provided by the Employer. In the absence of an updated list, Business Associate is authorized to continue to use current Employer contacts. e. Disclosure of Summary Health Information - This section does not apply to disclosures of summary information as defined in HIPAA. Business Associate may disclose to the Employer summary health information: i. To obtain premium bids for providing additional or different benefits coverage under the Health Plan; ii. To modify, amend, or terminate the Health Plan; or iii. As otherwise permitted by HIPAA or the HITECH Act. f. Health Plan Documents - Employer and Business Associate acknowledge that the Agreement constitutes the Health Plan document for the program administered by Business Associate. This section shall serve as the amendment to the Health Plan document as required by HIPAA to permit Business Associate to disclose PHI to the Employer. The provisions of this section control over any provision in the Agreement that conflicts with this section. i. Employer Certification - The following terms of this section incorporate the requirements of HIPAA to permit the Health Plan or Business Associate to lawfully disclose PHI to the Employer or its agents. This section shall serve as the Employer's certification as required by HIPAA. ii. Permitted Uses and Disclosures a. Employer, its directors, officers, employees, contractors and agents shall use and/or disclose PHI received by Employer solely in accordance with the uses and disclosures for the purpose of providing plan administration function to the Health Plan. b. Employer shall not, and shall ensure that its directors, officers, employees, contractors, and agents do not, use or further disclose PHI in any manner except as permitted or required by this Business Associate Agreement or as required by law or regulation. iii. Agents and Subcontractors - Employer shall ensure that any agent or subcontractor that will have access to PHI from Employer agrees to be bound by the same restrictions, terms, and conditions that apply to Employer pursuant to this Business Associate Agreement. iv. Employment -Related Actions and Decisions - The Employer shall not use or disclose PHI for employment -related actions or decisions in connection with any other benefit plan of the Employer. v. Adequate Separation - Employer shall ensure adequate separation as required by HIPAA by doing the following: a. Employer shall identify the Employer's employees, classes of employees, or other persons to whom the Health Plan, its agents, or Business Associate shall disclose PHI. b. Employer shaII restrict access to PHI and use of PHI by such employees or other persons to the plan administrator functions that Employer performs for the Health Plan. SECURITY STANDARDS Security Safeguards - The Business Associate agrees to: Implement Administrative, Physical, and Technical safeguards that reasonably and appropriately protect the Confidentiality, Integrity, and Availability of the Electronic PHI that it creates, receives, maintains, or transmits on behalf of the Employer or Covered Entity; ii. Ensure that any agent, including a subcontractor, to whom it provides such information, agrees to implement reasonable and appropriate safeguards to protect it; Report to the Employer any Security Incident of which it becomes aware; and iv. Authorize termination of the Business Associate Agreement by the Employer, if the Employer determines that the Business Associate has violated a material term of the Business Associate Agreement. MISCELLANEOUS a. Regulatory References - A reference in this Agreement to a section in the Privacy Rule means the section 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 Covered Entity to comply with the requirements of HIPAA. c. Survival - The respective rights and obligations of Business Associate under the "Effect of Termination" section of this Agreement shall survive the termination of this Agreement. d. Interpretation - Any ambiguity in this Agreement shall be resolved to permit both Business Associate and Covered Entity to comply with the Privacy Rule. e. Indemnification by Health Plan and Employer - The Health Plan and the Employer on the Health Plan's behalf agree to indemnify, defend, and hold hauuiiless the Business Associate and its employees, directors, officers, subcontractors, agents, or other members of its workforce, each of the foregoing hereinafter referred to as "Indemnified Party", against all actual and direct losses suffered by the Indemnified Party and all liability to third parties arising from, or in connection with, the Health Plan's or Employer's breach of this Business Associate Agreement. Accordingly, on demand, the Health Plan or Employer shall reimburse any Indemnified Party for any and all actual and direct losses, liability, lost profits, fines, penalties, costs, or expenses (including reasonable attorneys' fees) that may for any reason be imposed upon any Indemnified Party by reason of any suit, claim, action, proceeding or demand by any third party that results from the Health Plan or Employer's breach hereunder. The obligation to indemnify any Indemnified Party shall survive the expiration or termination of this Business Associate Agreement for any reason. f. Limitation of Liability - Business Associate's sole liability and Client's sole remedy for Business Associate's any action arising from its performance of this Agreement will be for actual damages. Business Associate will, under no circumstances, be liable for any special, indirect, incidental, consequential or punitive damages, including lost profits incurred by Employer or Covered Entity pursuant to this Agreement or by the transactions contemplated by it, however caused, on any theory of liability (including contract, tort or warranty), or as a result of Business Associate's exercise of its rights under the Agreement, even if Business Associate has been advised of the possibility of such damages. TERM AND TERMINATION a. Term - The Term of this Agreement shall be effective as of the date Covered Entity and/or Employer execute an Agreement with Business Associate and shall terminate when all of the PHI 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 PHI, protections are extended to such information, in accordance with the termination provisions in this section. b. Termination for Cause - Upon Covered Entity's knowledge of a material breach by Business Associate, Covered Entity shall either: i. Provide an opportunity for Business Associate to cure the breach or end the violation; or ii. Terminate this Agreement if Business Associate has breached a material term of this Agreement and has not taken steps to cure the breach within sixty (60) days. c. Effect of Termination Except as provided in paragraph (ii) of this section, upon termination of this Agreement, for any reason, Business Associate shall return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to PHI that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of PHI. ii. hi the event that Business Associate determines that returning or destroying the PHI is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. Upon its determination that return or destruction of PHI is infeasible, Business Associate shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI. IN WITNESS WHEREOF, Employer and Business Associate have duly executed this Business Associate Agreement as of the date listed below. Employer represents and warrants that it is signing this Agreement in its capacity as the sponsor of the Health Plan and not in a capacity of a business associate to the Health Plan. EMPLOYER/PLAN SPONSOR: Signature Print Name Print Title Date 1 I BUSINESS ASSOCIATE: PAYCHEX BENEFIT TECHNOLOGIES, INC. Signature Print Name Brian Daley Print Title V.P. of Operations