("Business Associate")
Together referred to herein as the "Parties."
RECITALS
Paperflower Foundation is a nonprofit organization that provides funding and support to individuals and families seeking mental health and related services. In connection with this mission, the Foundation works with licensed clinicians, therapists, psychiatrists, and other healthcare professionals (collectively "Partner Providers") who may create, receive, maintain, or transmit protected health information on behalf of or in connection with services supported by the Foundation.
Business Associate provides services to or on behalf of Paperflower Foundation that may involve access to, creation of, or use of protected health information as defined under HIPAA.
The Parties enter into this Agreement to satisfy the requirements of HIPAA, HITECH, and applicable regulations, and to protect the privacy and security of protected health information shared between them.
ARTICLE 1 — DEFINITIONS
The following terms used in this Agreement shall have the meanings set forth below. Any term used but not defined herein shall have the meaning given to it under HIPAA, HITECH, or their implementing regulations.
1.1 Breach means the acquisition, access, use, or disclosure of Protected Health Information in a manner not permitted under the HIPAA Privacy Rule that compromises the security or privacy of the Protected Health Information, as defined at 45 CFR § 164.402.
1.2 Business Associate has the meaning given at 45 CFR § 160.103 and refers to the Partner Provider identified above.
1.3 Covered Entity means Paperflower Foundation, to the extent it qualifies as a covered entity or hybrid entity under HIPAA in connection with its funding and administrative functions.
1.4 Designated Record Set has the meaning given at 45 CFR § 164.501.
1.5 Electronic Protected Health Information or ePHI means Protected Health Information that is created, received, maintained, or transmitted in electronic form.
1.6 HIPAA Rules means the Privacy, Security, Breach Notification, and Enforcement Rules promulgated under HIPAA and HITECH, as amended from time to time.
1.7 Individual means the person who is the subject of Protected Health Information, and includes the person's personal representative where applicable under 45 CFR § 164.502(g).
1.8 Protected Health Information or PHI means any individually identifiable health information created, received, maintained, or transmitted by the Business Associate on behalf of the Covered Entity, as defined at 45 CFR § 160.103, limited to information received from or created or received on behalf of Covered Entity.
1.9 Required by Law has the meaning given at 45 CFR § 164.103.
1.10 Secretary means the Secretary of the United States Department of Health and Human Services.
1.11 Security Incident means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system, as defined at 45 CFR § 164.304.
1.12 Subcontractor means a person or entity who acts on behalf of a Business Associate, other than in the capacity of a member of the Business Associate's workforce, as defined at 45 CFR § 160.103.
1.13 Unsecured PHI means Protected Health Information that is not rendered unusable, unreadable, or indecipherable to unauthorized persons through a technology or methodology specified by the Secretary.
ARTICLE 2 — OBLIGATIONS OF BUSINESS ASSOCIATE
2.1 Permitted Uses and Disclosures. Business Associate may only use or disclose PHI as necessary to perform the services described in the Partner Provider Agreement between the Parties, or as otherwise Required by Law. Business Associate shall not use or disclose PHI in any manner that would violate the HIPAA Privacy Rule if done by Covered Entity.
2.2 Minimum Necessary Standard. Business Associate shall use, disclose, and request only the minimum amount of PHI necessary to accomplish the intended purpose of the use, disclosure, or request, consistent with 45 CFR § 164.502(b).
2.3 Prohibition on Sale of PHI. Business Associate shall not directly or indirectly receive remuneration in exchange for PHI, except as permitted under 45 CFR § 164.502(a)(5)(ii) and only with prior written authorization from Covered Entity.
2.4 Prohibition on Unauthorized Use. Business Associate shall not use or disclose PHI for marketing purposes or in any way that constitutes a sale of PHI without prior written authorization from Covered Entity and, where required, valid authorization from the Individual.
2.5 Safeguards. Business Associate shall implement and maintain appropriate administrative, physical, and technical safeguards to prevent the use or disclosure of PHI other than as provided for in this Agreement, consistent with the requirements of the HIPAA Security Rule at 45 CFR Part 164, Subpart C.
2.6 Subcontractors. Business Associate shall ensure that any Subcontractor that creates, receives, maintains, or transmits PHI on behalf of Business Associate agrees to the same restrictions, conditions, and requirements that apply to Business Associate under this Agreement by entering into a written agreement with the Subcontractor that complies with 45 CFR § 164.308(b)(2) and 45 CFR § 164.502(e)(1)(ii).
2.7 Access to PHI. To the extent that Business Associate maintains PHI in a Designated Record Set, Business Associate shall make such PHI available to Covered Entity upon request, and to the Individual upon request consistent with 45 CFR § 164.524, within fifteen (15) days of a written request.
2.8 Amendment of PHI. To the extent that Business Associate maintains PHI in a Designated Record Set, Business Associate shall make such PHI available for amendment and shall incorporate any amendments directed by Covered Entity consistent with 45 CFR § 164.526.
2.9 Accounting of Disclosures. Business Associate shall document and make available to Covered Entity information required for an accounting of disclosures of PHI as required by 45 CFR § 164.528 within fifteen (15) days of a written request.
2.10 Compliance with Privacy Rule. To the extent Business Associate is carrying out an obligation of Covered Entity under the HIPAA Privacy Rule, Business Associate shall comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligation.
2.11 Access by Secretary. Business Associate shall make its internal practices, books, and records relating to the use and disclosure of PHI received from or on behalf of Covered Entity available to the Secretary for purposes of determining compliance with the HIPAA Rules.
2.12 Notification of Privacy Practices. Business Associate shall abide by the limitations of Covered Entity's Notice of Privacy Practices to the extent that such limitations affect Business Associate's use or disclosure of PHI and Covered Entity has notified Business Associate of such limitations.
ARTICLE 3 — BREACH NOTIFICATION
3.1 Reporting of Breaches. Business Associate shall notify Covered Entity without unreasonable delay and in no case later than five (5) calendar days after discovery of a Breach of Unsecured PHI. Notification shall be provided in writing to info@paperflowerfoundation.org and shall include, to the extent possible:
- The identity of each Individual whose Unsecured PHI has been or is reasonably believed to have been involved in the Breach
- A brief description of what happened, including the date of the Breach and the date of discovery
- A description of the types of Unsecured PHI involved
- Any steps Individuals should take to protect themselves from potential harm
- A description of what Business Associate is doing to investigate the Breach, mitigate harm, and protect against future Breaches
Contact information for Business Associate
3.2 Reporting of Security Incidents. Business Associate shall report to Covered Entity any Security Incident of which it becomes aware, including attempted Security Incidents, without unreasonable delay and no later than ten (10) calendar days after discovery.
3.3 Reporting of Impermissible Uses or Disclosures. Business Associate shall report to Covered Entity any use or disclosure of PHI not provided for by this Agreement of which it becomes aware, without unreasonable delay and no later than ten (10) calendar days after discovery.
3.4 Mitigation. Business Associate shall take reasonable steps to mitigate, to the extent practicable, any harmful effect resulting from a use or disclosure of PHI in violation of this Agreement.
ARTICLE 4 — OBLIGATIONS OF COVERED ENTITY
4.1 Notice of Privacy Practices. Covered Entity shall provide Business Associate with its Notice of Privacy Practices and any changes thereto that may affect Business Associate's use or disclosure of PHI.
4.2 Permissions and Restrictions. 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 the HIPAA Rules, to the extent such restriction may affect Business Associate's use or disclosure of PHI.
4.3 Permissions from Individuals. Covered Entity shall obtain all necessary authorizations, consents, and permissions from Individuals as required by applicable law prior to disclosing PHI to Business Associate.
4.4 Minimum Necessary. Covered Entity shall use reasonable efforts to provide Business Associate only with the minimum PHI necessary to enable Business Associate to perform its obligations under this Agreement and the Partner Provider Agreement.
ARTICLE 5 — TERM AND TERMINATION
5.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in effect until the termination or expiration of the underlying Partner Provider Agreement, unless terminated earlier as provided herein.
5.2 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice if the other Party has materially breached any provision of this Agreement and has failed to cure such breach within fifteen (15) calendar days of receiving written notice of the breach. Covered Entity may terminate this Agreement immediately and without opportunity to cure if it determines, in its reasonable judgment, that Business Associate has violated a material term of this Agreement and that cure is not possible.
5.3 Automatic Termination. This Agreement shall automatically terminate upon termination of Business Associate's participation in the Paperflower Foundation partner network for any reason, including termination for fraud, misconduct, or license revocation.
5.4 Obligations Upon Termination. Upon termination of this Agreement for any reason, Business Associate shall, at the direction of Covered Entity:
- Return to Covered Entity all PHI received from or created on behalf of Covered Entity that Business Associate still maintains in any form, or
- Destroy all such PHI and provide written certification of destruction to Covered Entity within thirty (30) days of termination
If return or destruction is not feasible, Business Associate shall extend the protections of this Agreement to the PHI retained and limit further use or disclosure to those purposes that make return or destruction infeasible for as long as Business Associate maintains such PHI.
5.5 Survival. The obligations of Business Associate under Section 5.4 and under Article 3 with respect to any Breach discovered prior to termination shall survive the termination or expiration of this Agreement.
ARTICLE 6 — GENERAL PROVISIONS
6.1 Entire Agreement. This Agreement, together with the Partner Provider Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating to this subject matter.
6.2 Amendment. This Agreement may be amended only by a written instrument signed by authorized representatives of both Parties. Covered Entity may amend this Agreement as necessary to comply with changes in applicable law by providing thirty (30) days written notice to Business Associate.
6.3 No Third-Party Beneficiaries. Nothing in this Agreement shall confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.
6.4 Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules. In the event of a conflict between this Agreement and the Partner Provider Agreement with respect to PHI, this Agreement shall control.
6.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws principles, and applicable federal law including HIPAA and HITECH.
6.6 Severability. If any provision of this Agreement is found to be unenforceable, the remainder of the Agreement shall continue in full force and effect.
6.7 Indemnification. Business Associate shall indemnify, defend, and hold harmless Paperflower Foundation and its officers, directors, employees, and agents from and against any claims, losses, damages, penalties, fines, or expenses, including reasonable attorneys' fees, arising out of or relating to any violation of this Agreement or the HIPAA Rules by Business Associate or its Subcontractors.
6.8 Regulatory Changes. The Parties agree to negotiate in good faith any amendment to this Agreement required by changes in applicable law, regulation, or guidance issued by the Secretary. If the Parties are unable to agree on an amendment within sixty (60) days of written notice of a required change, either Party may terminate this Agreement upon thirty (30) days written notice.
SIGNATURES
By signing below, each Party represents that it has the authority to enter into this Agreement and agrees to be bound by its terms.
COVERED ENTITY — PAPERFLOWER FOUNDATION