Fortra Business Associate Subcontractor Agreement

This Business Associate Subcontractor Agreement (the “BAA”), effective as of the date last set forth below (the “Effective Date”) is between Fortra, LLC, a Delaware limited liability company with offices located at 11095 Viking Drive, Suite 100, Eden Prairie, MN 55344 USA on behalf of itself and its subsidiaries and affiliated entities (“Fortra” or “Business Associate Subcontractor”) and Client (the “”Business Associate”) and together with Fortra, the “parties”).

Background

The parties have entered into one or more Underlying Agreement(s) (as defined below) under which Fortra provides certain services to Business Associate. In the course of providing those services to Business Associate pursuant to the Underlying Agreement, Fortra may, on behalf of Business Associate, receive, maintain or transmit information that constitutes Protected Health Information, as defined in 45 CFR §160.103, and as a result may, for certain purposes and under certain circumstances, be deemed a “business associate”, as such term is defined in 45 CFR §160.103, under the HIPAA Rules (as defined below).  This BAA governs each party’s respective responsibilities with respect to such information to the extent Fortra acts as a business associate of Business Associate.

  1. Definitions.
  • (a) “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
  • (b) “HITECH Act” means the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009, Public Law 111-005
  • (c) “PHI” shall have the same meaning as the term “protected health information” in 45 C.F.R. §160.103, limited to the information created, received, maintained, or transmitted by Fortra from or on behalf of Business Associate pursuant to the Underlying Agreement.
  • (d) “Security Incident” shall have the same meaning as the term “security incident” in 45 C.F.R. §164.304, but shall not include trivial incidents that occur on a daily basis such as scans, “pings,” or routine attempts to penetrate computer networks or servers maintained or utilized by Fortra; provided that none of the foregoing compromise the privacy, integrity, and security of any PHI.
  • (e) “Services” shall mean the services provided by Fortra to Business Associate under the Underlying Agreement, to the extent, and only to the extent, that they involve the creation, maintenance, use, disclosure or transmission of PHI.
  • (f) Underlying Agreement” shall mean that certain Master Solutions Agreement and/or Professional Services Terms & Conditions located at fortra.com/legal or a separate executed agreement as agreed to by the parties.
  • (g) The following terms used in this BAA shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Business Associate, Business Associate Subcontractor, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured PHI, and Use.
  1. Obligations and Activities of Fortra; Permitted Uses by Fortra.
  • (a) Obligations and Activities of Fortra. Fortra agrees to:
    • (i) Not Use or disclose PHI other than as permitted or required by the BAA or as required by law;
    • (ii) 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 this BAA;
    • (iv) Report to Business Associate any Use or disclosure of PHI not provided for by the BAA 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;
    • (v) 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 Fortra agree to the substantially the same restrictions, conditions, and requirements that apply to Fortra with respect to such information;
    • (vi) As applicable, make available PHI in a designated record set to the Business Associate as necessary to satisfy Business Associate’s obligations under 45 CFR 164.524;
    • (vii) As applicable, make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by the Business Associate pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Business Associate’s obligations under 45 CFR 164.526;
    • (viii) Maintain and make available the information required to provide an accounting of disclosures to the Business Associate as necessary to satisfy Business Associate’s obligations under 45 CFR 164.528;
    • (ix)  To the extent Fortra is to carry out one or more of Business Associate's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Business Associate in the performance of such obligation(s); and
    • (x) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
    • (b) Permitted Uses by Fortra.
    • (i) Fortra may only Use or disclose PHI as permitted by this BAA, as necessary to perform the services set forth in the Underlying Agreement, and as otherwise required by law.
    • (ii) Fortra agrees to make uses and disclosures and requests for PHI consistent with Business Associate’s Minimum Necessary policies and procedures, subject to the Business Associate Subcontractor’s professional judgement.  The parties recognize that it is the responsibility of the Business Associate to determine whether the requested data is minimally necessary, and Business Associate agrees not to disclose any PHI that is not minimally necessary to Fortra.
    • (iii) Fortra may not Use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Business Associate, except for the specific uses and disclosures set forth below.
    • (iv) Fortra may Use PHI for the proper management and administration of the Fortra or to carry out the legal responsibilities of Fortra.
    • (v) Fortra may disclose PHI for the proper management and administration of Fortra or to carry out the legal responsibilities of Fortra, provided the disclosures are required by law, or Fortra 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 Fortra of any instances of which it is aware in which the confidentiality of the information has been breached.
    • vi) Fortra may Use or disclose PHI for Data Aggregation services or de-identification purposes.
  1.  Obligations of Business Associate.
  • (a) Safeguards. Business Associate is responsible for implementing appropriate privacy and security standards in order to protect its PHI in compliance with HIPAA and this BAA. Without limitation, Business Associate will: (1) not include PHI in information Business Associate submits to technical support personnel through a technical support request or community support forums, (2) implement privacy and security safeguards in the systems, applications, and software Business Associate uses with the Services, and (3) use the highest level of audit logging in connection with its use of the Services and maintain the maximum retention of logs in connection with its use of the Services.
  • (b) Configuration. Business Associate is solely responsible for configuring, and will configure, all of Business Associate’s accounts used with the Services to encrypt all PHI in accordance with the Secretary of HHS’s Guidance to Render Unsecured Protected Health Information Unusable Unreadable or Indecipherable to Unauthorized Individuals, as it may be updated from time to time.
  • (c) Notification Obligations. Business Associate shall notify Fortra in writing, to the extent it may affect Fortra’s use or disclosure of PHI, of: (i) any limitation(s) in the Notice of Privacy Practices of Business Associate under 45 CFR 164.520; (ii) any changes in, or revocation of, the permission by an individual to Use or disclose his or her PHI; and (iii) any restriction on the use or disclosure of PHI that Business Associate has agreed to or is required to abide by under 45 CFR 164.522. Notwithstanding the foregoing, Business Associate will not agree to any restriction requests or place any restrictions in its Notice of Privacy Practices that would cause Fortra to violate this BAA or the HIPAA Rules.
  • (d) Non-Permissible Requests. Business Associate shall not request Fortra to Use or disclose PHI in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Business Associate or otherwise permitted under this BAA.
  1. Term and Termination.
  • (a) Term. The Term of this BAA shall be effective as of the Effective Date above, and shall terminate on when a party terminates, or on the date a party terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.  A party may terminate this BAA with 30 days notice to the other party, however; this BAA will stay in effect as long as the Underlying Agreement is in effect and the parties are exchanging PHI.
  • (b) Termination for Cause. Each party may terminate of this BAA, if the other party determines a party has violated a material term of the BAA, and that party has not cured the breach or ended the violation within thirty days, or a reasonable amount of time.
  • (c) Obligations of Fortra Upon Termination. Upon termination of this BAA for any reason, Fortra shall return to Business Associate, or destroy all, if feasible, PHI received from Business Associate, or created, maintained, or received by Fortra on behalf of Business Associate, that Fortra still maintains in any form within a reasonable amount of time.  To the extent return or destruction of the PHI is not feasible or is needed to be maintained for recordkeeping purposes, as required by applicable law(s) and if it is infeasible to destroy. Fortra shall extend any and all protections, limitations and restrictions contained in this BAA to Fortra’s use and/or disclosure of any PHI retained after the expiration or termination of this BAA.
  • 5. Miscellaneous .
  • (a) Limitation of Liability.  This BAA is subject to the terms and conditions of the Underlying Agreement and the limitations of liability set forth in the Underlying Agreement shall apply to this BAA, including without limitation any breach of this BAA by either party. For the avoidance of doubt, such limitations of liability are an aggregate limit and all claims under this BAA shall be aggregated with all claims under the Underlying Agreement.
  • (b) Regulatory References. A reference in this BAA to a section in the HIPAA Rules means the section as in effect or as amended.
  • (c) Amendment. The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law. If such Amendment is not made within a reasonable amount of time, this BAA is automatically amended to comply with the requirements of the HIPAA Rules.
  • (d) Interpretation. Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.
  • (e) No Third-Party Beneficiaries.  This BAA is between the parties hereto. Nothing express or implied in this BAA is intended to confer, nor shall anything herein confer, upon any person other than the parties hereto and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
  • (f) HITECH Act Compliance. The parties acknowledge that the HITECH Act includes significant changes to the Privacy Rule and the Security Rule. The privacy subtitle of the HITECH Act sets forth provisions that significantly change the requirements for business associates and the agreements between business associates and covered entities under HIPAA and these changes may be further clarified in forthcoming regulations and guidance. Each party agrees to comply with the applicable provisions of the HITECH Act and any HHS regulations issued with respect to the HITECH Act. The parties also agree to negotiate in good faith to modify this BAA as reasonably necessary to comply with the HITECH Act and its regulations as they become effective.
  • (g)  Entire Agreement. This BAA constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral, with regard to this same subject matter.