HIPAA Business Associate Agreement for Root Reviews “Covered Entity” Customers

 

These Standard HIPAA Business Associate Agreement Terms and Conditions (HIPAA

Addendum”) shall be incorporated into the Master Service Agreement for Customers that are Covered

Entities (as defined below) that provide Protected Health Information (“PHI”) (as defined below) to Root

Reviews in connection with the Root Reviews for Local Business and Enterprise services they have

purchased. These terms supplement the purchase agreement between Root Reviews and Customers

(“Underlying Agreement”) in order to comply with the federal Standards for Privacy of Individually

Identifiable Health Information, located at 45 C.F.R. Part 160 and Part 164, Subparts A through E

(“Privacy Rule”) and the Health Information Technology for Economic and Clinical Health Act, Public

Law 111-005 (the “HITECH Act”).

 

1. CATCH-ALL DEFINITIONS. 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.

 

2. SPECIFIC DEFINITIONS. Terms used, but not otherwise defined, in this HIPAA Addendum shall

have the same meaning as those terms in the Privacy Rule or the HITECH Act.

 

A. “Breach” shall have the same meaning given to such term under 42 U.S.0 § 17921.

 

B. “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 Root Reviews.

 

C. “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 [Insert Name of Covered

Entity].

 

D. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules

at 45 CFR Part 160 and Part 164.

 

E. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and

shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §

164.502(g).

 

F. “Protected Health Information” or “PHI” shall have the same meaning as the term “protected

health information” in 45 C.F.R. § 160.103, limited to the information created or received by

Business Associate from or on behalf of the Covered Entity.

 

G. “Required by Law” shall have the same meaning as the term “required by law” in 45 C.F.R.

§160.103.

 

H. “Unsecured PHI” shall have the same meaning given to such term under the HITECH Act and

any guidance issued pursuant to this act.

 

3. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

Root Reviews agrees to:

3.1 Use and Disclosure of PHI: Root Reviews shall not use or disclose PHI other than as permitted

or required by this HIPAA Addendum or as Required by Law. Root Reviews shall not use or disclose

PHI for fundraising or marketing purposes. Root Reviews shall not directly or indirectly receive

remuneration in exchange for PHI, except with the prior written consent of Covered Entity and as

permitted by the HITECH Act; however, this prohibition shall not affect payment by Covered Entity

to Root Reviews for services provided pursuant to the Underlying Agreement.

3.2 Safeguards: Root Reviews shall use appropriate safeguards, and comply with Subpart C of 45

CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as

provided for by the Agreement.

3.3 Mitigation: Root Reviews shall mitigate, to the extent practicable, any harmful effect that is

known to Root Reviews of a use or disclosure of PHI by Root Reviews in violation of the

requirements of this HIPAA Addendum.

3.4 Reporting: Root Reviews shall report to Covered Entity any use or disclosure of PHI not

provided for by the Agreement of which it becomes aware, including breaches of unsecured PHI as

required at 45 CFR 164.410, and any security incident of which it becomes aware;

Check all that apply:

[ ] Business Associate will notify Covered Entity of the breach within thirty (30) business days

[ ] Business Associate will notify patient of the breach

[ ] Business Associate will notify HHS Office for Civil Rights of breach

3.5 Disclosure to Agents and Subcontractors: 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

PHI on behalf of the Root Reviews agree to the same restrictions, conditions, and requirements that

apply to the Root Reviews with respect to such information

3.6 Designated Record Set: Root Reviews shall provide access, at the request of Covered Entity, to

PHI in a Designated Record Set in order to meet the requirements under 45 C.F.R. § 164.524.

Business Associate will forward request for access of the designated record set to Covered Entity

within thirty (30) days OR Business associate will respond to request for access of the designated

record set within Thirty [30] days ( per the applicability). If Business Associate is unable to respond

to request for access, the Business Associate will notify the requesting party.

3.7 Internal Practices, Policies and Procedures: Root Reviews shall make available its 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 Root Reviews on behalf of, Covered Entity

available to the Covered Entity and to the Secretary of Health and Human Services (“Secretary”) for

purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule and the

HITECH Act.

3.8 Accounting for Disclosures: Root Reviews agrees to maintain the information required to

provide an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528 and to make this

information available to the Covered Entity upon the Covered Entity’s request in order to allow the

Covered Entity to respond to an Individual’s request for accounting of disclosures.

3.9 Security Obligations: Root Reviews shall implement appropriate safeguards as are necessary to

prevent the use or disclosure of PHI otherwise than as permitted by the Underlying Agreement or this

HIPAA Addendum including, but not limited to, administrative, physical, and technical safeguards

that reasonably and appropriately protect the confidentiality, integrity, and availability of the Covered

Entity’s electronic PHI as required by 45 C.F.R. Sections 164.308, 164.310, and 164.312, as amended

from time to time. Root Reviews shall ensure that any agent, including a subcontractor, to whom it

provides such electronic PHI, agrees to implement reasonable and appropriate safeguards to protect it.

Root Reviews shall comply with the policies and procedures and document requirements of the

Privacy Rule including, but not limited to, 45 C.F.R. Section 164.316. Root Reviews agrees to report

promptly to the Covered Entity any security incident of which it becomes aware.

3.10 Breach Pattern or Practice by Covered Entity: If Root Reviews knows of a pattern of activity

or practice of the Covered Entity that constitutes a material breach or violation of the Covered

Entity’s obligations under the HIPAA Addendum, Root Reviews must take reasonable steps to cure

the breach or end the violation. If the steps are unsuccessful, Root Reviews must terminate the

Underlying Agreement, if feasible, or if termination is not feasible, report the problem to the

Secretary.

 

4. PERMITTED USES AND DISCLOSURES BY ROOT REVIEWS

4.1 Permitted Uses and Disclosures: Except as otherwise limited in this HIPAA Addendum, Root

Reviews may use or disclose PHI to perform functions, activities, or services for or on behalf of the

Covered Entity as specified in the Underlying Agreement provided. Such use or disclosure would not

violate the Privacy Rule including, but not limited to, each applicable requirement of 45 C.F.R. §

164.504(e) and the HITECH Act if done by the Covered Entity.

4.2 Use for Management and Administration: Except as otherwise limited in this HIPAA

Addendum, Root Reviews may use PHI for the proper management and administration of Root

Reviews or to carry out the legal responsibilities of Root Reviews.

4.3 Disclosure for Management and Administration: Except as otherwise limited in this HIPAA

Addendum, Root Reviews may disclose PHI for the proper management and administration of the

Root Reviews, provided that disclosures are Required by Law or Root Reviews 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 Root Reviews of any instances of which it is aware in which the

confidentiality of the information has been breached.

4.5 Minimum Necessary: Root Reviews (and its agents or subcontractors) shall request, use, and

disclose only the minimum amount of PHI necessary to accomplish the purpose of the request, use, or

disclosure. Root Reviews understands and agrees that the definition of “minimum necessary” is

subject to change from time to time and shall keep itself informed of guidance issued by the Secretary

with respect to what constitutes “minimum necessary.”

4.6 Data Aggregation: Except as otherwise limited in this HIPAA Addendum, Root Reviews may

use PHI to provide Data Aggregation services related to health care operations to the Covered Entity

as permitted by 45 C.F.R. §164.504(e)(2)(i)(B).

4.7 Report Violations of Law: Root Reviews may use PHI to report violations of law to appropriate

Federal and State authorities consistent with 45 C.F.R. §164.502(j)(1).

 

5. PROVISIONS FOR COVERED ENTITY TO INFORM BUSINESS ASSOCIATE OF

PRIVACY PRACTICES AND RESTRICTIONS

5.1 Notice of Privacy Practices: The Covered Entity shall notify Root Reviews of any limitation(s)

in the notice of privacy practices of the Covered Entity under 45 C.F.R. § 164.520, to the extent that

such limitations may affect Root Reviews’ use or disclosure of PHI.

5.2 Changes in Permission: The Covered Entity shall notify Root Reviews 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 Root Reviews’ use or disclosure of PHI.

5.3 Notification of Restrictions: The Covered Entity shall notify Root Reviews of any restriction to

the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45

C.F.R. § 164.522, to the extent that such restriction may affect Root Reviews’ use or disclosure of

PHI.

5.4 Permissible Requests by Covered Entity: The Covered Entity shall not request Root Reviews

to use or disclose PHI in any manner that would not be permissible under the Privacy Rule and the

HITECH Act if done by Covered Entity. Exceptions if certain provisions are made; Data aggregation,

Management and administration and Legal responsibilities of Root Reviews (one or more may apply).

 

6. TERM AND TERMINATION

6.1 Term: The Term of this HIPAA Addendum shall be effective as of the first day that the Covered

Entity provides PHI to Root Reviews and shall terminate when all of the PHI provided by the

Covered Entity to Root Reviews, or created or received by Root Reviews on behalf of the Covered

Entity, is destroyed or returned to the 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.

6.2 Termination for Cause: Root Reviews authorizes termination of this Agreement by the Covered

Entity, if the Covered Entity determines Root Reviews has violated a material term of the Agreement:

A. Provide 60 days advance written notice specifying the nature of the breach or violation to

Root Reviews. Root Reviews shall have 60 days from the date of the notice in which to remedy

the breach or violation. If such corrective action is not taken within the time specified, this

HIPAA Addendum and the Underlying Agreement shall terminate at the end of the 60 day

period without further notice or demand

B. Immediately terminate this HIPAA Addendum and the Underlying Agreement if Root

Reviews has breached a material term of this HIPAA Addendum and cure is not possible

C. Report the violation to the Secretary if neither cure of the breach nor termination of this

HIPAA Addendum and the Underlying Agreement are feasible

6.3 Obligation of Root Reviews Upon Termination:

A. Upon termination of this HIPAA Addendum or the Underlying Agreement, for any reason,

Root Reviews shall return or destroy all PHI received from Covered Entity, or created, maintains

or received by Root Reviews on behalf of Covered Entity. This provision shall apply to PHI that

is in the possession of subcontractors or agents of Root Reviews. Root Reviews shall retain no

copies of the PHI

B. Upon termination of this Agreement for any reason, Root Reviews, with respect to PHI

received from Covered Entity, or created, maintained, or received by Root Reviews on behalf of

the Covered Entity, shall:

1. Retain only that PHI which is necessary for Root Reviews to continue its proper

management and administration or to carry out its legal responsibilities;

2. Return to the Covered Entity [or, if agreed to by covered entity, destroy] the remaining

PHI that the Root Reviews 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 PHI to prevent use or disclosure of the PHI, other than as provided

for in this Section, for as long as Root Reviews retains the PHI

4. Not use or disclose the PHI retained by Root Reviews other than for the purposes for

which such PHI was retained and subject to the same conditions set out at which applied

prior to termination

5. Return to Covered Entity [or, if agreed to by covered entity, destroy] the PHI retained by

Root Reviews when it is no longer needed by Root Reviews for its proper management and

administration or to carry out its legal responsibilities

C. In the event that Root Reviews determines that returning or destroying PHI is not feasible,

Root Reviews shall notify Covered Entity in writing of the conditions that make return or

destruction infeasible. If return or destruction of the PHI is infeasible, Root Reviews shall extend

the protections of this HIPAA Addendum to such PHI and limit further uses and disclosures of

such PHI to those purposes that make the return or destruction infeasible, for so long as Root

Reviews maintains such PHI

 

7. MISCELLANEOUS IN ADDITION TO TERMS AND CONDITIONS

7.1 Regulatory References: A reference in this HIPAA Addendum to a section in the Privacy Rule

or the HITECH Act means the section as in effect or as amended.

7.2 No Third Party Beneficiaries: Nothing in this HIPAA Addendum shall be considered or

construed as conferring any right or benefit on a person not party to this HIPAA Addendum nor

imposing any obligations on either Party hereto to persons not a party to this HIPAA Addendum.

7.3 Amendments: Root Reviews reserves the right to change the terms and conditions of this HIPAA

Addendum at any time. Root Reviews will notify the Covered Entity of any material changes to this

HIPAA Addendum by sending the Covered Entity an e-mail to the last e-mail address the Covered

Entity provided to Root Reviews or by prominently posting notice of the changes on Root Reviews’

website. Any material changes to this HIPAA Addendum will be effective upon the earlier of thirty

(30) calendar days following Root Reviews’ dispatch of an e-mail notice to the Covered Entity or

thirty (30) calendar days following Root Reviews’ posting of notice of the changes on its website.

These changes will be effective immediately for new Root Reviews Clients. Please note that at all

times the Covered Entity is responsible for providing Root Reviews with its most current e-mail

address. In the event that the last e-mail address that the Covered Entity has provided Root Reviews is

not valid, or for any reason is not capable of delivering to the Covered Entity the notice described

above, Root Reviews’ dispatch of the e-mail containing such notice will nonetheless constitute

effective notice of the changes described in the notice. If the Covered Entity does not agree with the

changes to this HIPAA Addendum, the Covered Entity must notify Root Reviews prior to the

effective date of the changes that the Covered Entity wishes to terminate its subscription to the

applicable Root Reviews services. Continued use of the Root Reviews services following notice of

such changes shall indicate the Covered Entity’s acknowledgement of such changes and agreement to

be bound by the terms and conditions of such changes.

7.4 Interpretation: The provisions of this HIPAA Addendum shall prevail over the provisions of

any other agreement that exists between the Parties that may conflict with, or appear inconsistent

with, any provision of this HIPAA Addendum, the Privacy Rule or the HITECH Act.

7.5 No Third Party Beneficiaries: The Business Associate and Covered Entity do not intend, nor

does anything expressed or implied in this Agreement intend to confer, upon any person other than

the Business Associate and Covered Entity and their respective successor or assigns, any rights,

remedies, obligations or liabilities whatsoever.

7.6 Independent Contractor: The Business Associate is performing services pursuant to the

Agreement and for all purposes hereunder, the Business Associate’s status shall be that of an

independent contractor.