BUSINESS ASSOCIATE AGREEMENT FOR SPONSORS OR CARE PARTNERS SUBJECT TO HIPAA

PHTS currently owns and operates this website (the “Site”).  MyPHTS is a web-based information and communication application service owned and administered by PHTS through the Site. MyPHTS application’s use is for displaying and viewing care management assessments, personal health records, personalized health education, and care coordination communication.

By purchasing a MyPHTS Service subscription, you agree to enter into this Business Associate Agreement (“BAA”)

Definitions

Catch-all definition:

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

Specific definitions:

(a) 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 Practical Health Technology Solutions, LLC.

(b) 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 the following.

(i) Covered Entity is a Sponsor or Care Partner that is either a covered entity subject to HIPAA Rules or is a business associate of one or more healthcare organizations which are covered entities.

  1. Sponsoris any viewer or user of our website that is a licensed physician or other qualified healthcare professional, qualified healthcare practice or organization, or qualified health plan that has entered a service agreement with PHTS to provide use of the MyPHTS application to members the sponsor invites. Sponsors must have an active Sponsor account in the system and must be compliant with the PHTS Terms and Conditions for Sponsors.
  2. Care Partneris any MyPHTS viewer or user invited by a Sponsor to use the MyPHTS application. Care Partners must be other licensed physicians or other qualified healthcare professionals or other qualified healthcare practice organizations, or qualified health plans designated by a Care Coordination member’s Sponsor(s) as permitted by law. Care Partners must have active registrations using a registration code provided in an invitation by a Sponsor to use the MyPHTS application care partner services and must be compliant with the PHTS Terms and Conditions for Sponsors and Care Partners.

(c)Care Coordination Member is any MyPHTS viewer or user invited by a Sponsor to use the MyPHTS application. Care Coordination Members must be a person engaged in treatment, care plan, care coordination, care management, or healthcare beneficiary relationship with a Sponsor or Care Partner. Care Coordination Members must have active registrations using a registration code provided in an invitation by a Sponsor to use the MyPHTS application member services and must be compliant with the PHTS Terms and Conditions for Members.

(d) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

(e) Personal Health Records: The legal health record (LHR) or designated record set excludes health records that are not official business records of a healthcare provider organization.  Records such as personal health records (PHR) that are patient controlled, managed, and populated would not be part of the designated record set or legal health record. Copies of PHRs that are patient owned, managed, and populated by the individual but provided to covered entities) may be considered part of the designated record set if such records are used by covered entities to provide patient care services, review patient data, or document observations, actions, or instructions.  This includes patient owned, managed, and populated “tracking” records, such as medication tracking records and glucose/insulin tracking records.

MyPHTS does not store records for physicians, other qualified healthcare providers, healthcare payers, or other organizations.  MyPHTS submissions and information are not designated record sets as defined by state and applicable U.S. federal laws.  If a physician, other qualified healthcare provider, healthcare payer, or other organization decides to include any data made available from MyPHTS in its records, it should store a copy in its own system.

 

Obligations and Activities of Business Associate

Business Associate agrees to:

(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;

(b) 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;

(c) 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;

(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors 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;

(e) If applicable, make available protected health information in a designated record set to the covered entity as necessary to satisfy covered entity’s obligations under 45 CFR 164.524;

(f) If applicable, make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity’s obligations under 45 CFR 164.526;

(g) If applicable, maintain and make available the information required to provide an accounting of disclosures to the [Choose either “covered entity” or “individual”] as necessary to satisfy covered entity’s obligations under 45 CFR 164.528;

(h)  To the extent the business associate is to carry out one or more of covered entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and

(i) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

 

Permitted Uses and Disclosures by Business Associate

(a) Business associate may only use or disclose protected health information as set forth in PHTS Terms and Conditions for Sponsors, PHTS Terms and Conditions for Members, and the Privacy Policy.

(b) Business associate may use or disclose protected health information as required by law.

(c) Business associate agrees to make uses and disclosures and requests for protected health information consistent with covered entity’s minimum necessary policies and procedures.

(d) Business associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by covered entity, except for the specific uses and disclosures set forth below.

(e) 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.

(f) Business associate may disclose protected health information for the proper management and administration of business associate or to carry out the legal responsibilities of the business associate, provided the disclosures are required by law, or business associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies business associate of any instances of which it is aware in which the confidentiality of the information has been breached.

(g) Business associate may provide data aggregation services relating to the health care operations of the covered entity.

Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

(a) Covered entity shall notify business associate of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect business associate’s use or disclosure of protected health information.

(b) Covered entity shall notify business associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect business associate’s use or disclosure of protected health information.

(c) Covered entity shall notify business associate of any restriction on the use or disclosure of protected health information 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 protected health information.

Term and Termination

(a) Term. The Term of this Agreement shall be effective as of the purchase date of MyPHTS application service subscription and shall terminate on the date of cancellation of MyPHTS application service subscription or on the date covered entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.

(b) Termination for Cause. Business associate authorizes termination of this Agreement by covered entity, if covered entity determines business associate has violated a material term of the Agreement and business associate has not cured the breach or ended the violation within ninety days of being notified of the breach by the covered entity.

(c) Obligations of Business Associate Upon Termination.

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. 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. Destroy the remaining protected health information that the business associate still maintains subject to the same conditions set out at above under “Permitted Uses and Disclosures By Business Associate” which applied prior to termination;
  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 at above under “Permitted Uses and Disclosures By Business Associate” which applied prior to termination; and
  5. 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.

(d) Survival.  The obligations of business associate under this Section shall survive the termination of this Agreement.

Miscellaneous

(a) Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.

(b) Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.