HomeMy WebLinkAboutES09-352 - Other - Premera Blue Cross - Attachment E - Business Associate Agreement - 04/20/2005 O
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CONTRACT COVER SHEET
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to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name:
Vendor Number:
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Contract Number: C?-
This is assigned by City Clerk's Offnnic�-e
Project Name: LPIDF� �oVll`AL�lA4� >
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ❑ Contract
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Detail: (i.e. address, location, parcel number, tax id, etc.):
S•Publlc\RecordsManagement\Forms\ContractCover\adcc7832 1 11/08
PREMERA 10
BUSINESS ASSOCIATE AGREEMENT
FOR GROUPS NOT SUBJECT TO ERISA
BETWEEN
PREMERA BLUE CROSS
AND
CITY OF KENT
EFFECTIVE APRIL 20, 2005
This Business Associate Agreement(the"Agreement")shall be entered into by and between Premera
Blue Cross (the"Claims Administrator"), and and the group named above (the"Plan Sponsor" and the
"Health Plan (HP)"as defined below) The Agreement shall be effective on the date shown above and
shall be made part of the Administrative Services Contract(the"Contract") between the Claims
Administrator and the Plan Sponsor
Recitals
1. In 1996, Congress enacted the Health Insurance Portability and Accountability Act("HIPAA"),
which required, among other things, the promulgation of privacy rules governing the use and
disclosure of protected health information ("PHI") (as defined below),and the protection of
electronic protected health Information ("EPHI") (as defined below)
2 In pertinent part, the implementation regulations for HIPAA, codified at 45 C F R Parts 160, 162
and 164, subparts A, C and E, and as amended (collectively referred to as the"HIPAA Rules")
require covered entities, such as the HP, to maintain a written agreement with specific provisions
concerning PHI and EPHI with Its Business Associates (as defined in 45 C F R 160 103 and as
amended)
3 In addition to being the business associate of the HP, the Claims Administrator is also a covered
entity, as defined In the HIPAA Rules, and has policies, procedures and practices in place to
ensure compliance with the HIPAA Rules as well as other state and federal privacy laws, which
protect personal financial, health and other information, that apply to the Company(collectively
referred to as the"Privacy Laws")
4. The Claims Administrator has adopted the term"protected personal Information"or"PPI"(as
defined below) to encompass PHI and the additional information protected by the Privacy Laws,
and will apply the requirements of the HIPAA privacy rules to PPI
NOW, THEREFORE, in consideration of these premises and the mutual promises and agreements
hereinafter set forth, the Plan Sponsor, the HP and the Claims Administrator hereby agree as follows
1 Definitions. The following definitions shall apply in interpreting this Agreement Terms used, but
not otherwise defined shall have the same meaning as those terms in the Privacy Rule(as
defined below)
1 1 EPHI "EPHI" (Electronic Protected Health Information)shall mean any and all PHI
transmitted by or maintained in electronic media
12 Health Plan or HP The HP shall be defined consistent with 45 CFR 160 103, and as
amended
BUSINESS ASSOCIATE AGREEMENT -1 - 012190(05-2008)
An Independent Licensee of the Blue Cross Blue Shield Association
13 Individual "Individual" shall mean the person who is the subject of the PPI or their
personal representative(as defined in 45 CFR 164 502(g))
14 PHI "PHI" (Protected Health Information) shall mean any and all Information created or
received by Claims Administrator from or on behalf of HP that Identifies or can readily be
associated with the Identity of an Individual, whether oral or recorded in any form or
medium, that directly relates to (1)the past, present or future physical, mental or
behavioral health or condition of an Individual, (2)the past, present or future payment for
the provision of health care to an Individual, or(3)the provision of health care to an
Individual
15 Protected Personal Information or PPI 'PPI"shall mean PHI and any and all Information
created or received by the Claims Administrator from or on behalf of HP that Identifies or
can readily be associated with the identity of an Individual, whether oral or recorded in
any form or medium, that directly relates to the past, present or future finances of an
Individual, including,without limitation, an Individual's name, address, telephone number,
Social Security Number, subscriber number or wage information
16 Secretary "Secretary'shall mean the Secretary of the Department of Health and Human
Services or his duly appointed designee
17 Security Incident "Security Incident"shall have the same meaning as the term"security
incident" in 45 CFR 164 304, including any subsequent modifications thereto
2. HP. The Claims Administrator and the Plan Sponsor and HP all agree that the HP shall be added
as a party to the Contract and acknowledge that the HP's obligations under the Contract are
contained completely in this Agreement The signature of the Plan Sponsor to this Agreement
shall be agreed to be the signature of the HP and binding on behalf of both the Plan Sponsor and
the HP
3. Permitted Uses and Disclosures of PPI by the Claims Administrator.
31 Functions and Activities on the HP's Behalf The Claims Administrator shall be permitted
to use and disclose PPI for(a)the management, operation and administration of the HP
and (b)as otherwise necessary to provide the services set forth in the Contract,
including, but not limited to activities related to Payment and Health Care Operations as
defined in 45 CFR 164 501
32 Disclosures to the Plan Sponsor,the HP or other Business Associates of the HP Except
as otherwise permitted by written directive from HP,the Claims Administrator will not
disclose PPI to the Plan Sponsor, the HP or to another business associate of the HP
The Claims Administrator may disclose PPI only to those individuals employed by the HP
or business associates of the HP, including, without limitation, the HP's broker, identified
in writing by the HP as individuals to whom PPI can be disclosed The HP must provide
this written directive to the Claims Administrator as soon as possible but in any event no
later than the effective date of the Contract The HP must promptly notify the Claims
Administrator of any changes to the written directive
33 Functions and Activities on the Claims Administrator's Behalf The Claims Administrator
shall be permitted to use PPI as necessary for the Claims Administrator's management
and administration or to carry out its legal responsibilities as permitted or required by law
The Claims Administrator shall also be permitted to disclose PPI to its Business
Associates, subcontractors or other third parties as necessary for proper management
and administration of the Claims Administrator, or to carry out the Claims Administrator's
legal responsibilities (a) if the disclosure is required by law or(b) if before the disclosure
BUSINESS ASSOCIATE AGREEMENT -2- 012190(05-2008)
is made, the Claims Administrator, obtains a contract from the entity to which the
disclosure is to be made containing reasonable assurances that the entity will also
comply with the HIPAA Rules' business associate requirements
4. Minimum Necessary. The HP and the Plan Sponsor will make reasonable efforts to request
from the Claims Administrator only the minimum amount of PPI necessary for its needed
purpose In addition, the HP and the Plan Sponsor will make reasonable efforts to only disclose
to the Claims Administrator the minimum amount of PPI necessary for the Claims Administrator
to perform the services identified in the Contract and other functions and activities referenced in
Section 3 of this Agreement Finally, the Claims Administrator will make reasonable efforts to
use, disclose, or request only the minimum amount of PPI necessary from any third party to
perform the services identified in the Contract and other functions and activities referenced in
Section 3 of this Agreement
S. Other Privacy Obligations of the Claims Administrator The Claims Administrator shall
51 Not use or further disclose PPI other than as permitted or required by the Contract,the
Agreement or law and use appropriate safeguards to prevent any unauthorized use or
disclosure of PPI,
52 Implement administrative, physical and technical safeguards that reasonably and
appropriately protect the confidentiality, integrity and availability of the EPHI that the
Claims Administrator creates, receives, maintains, or transmits on behalf of the HP,
53 Report to HP any actual use or disclosure of PPI concerning HP's members not
permitted or required by the Contract, the Agreement or law of which it becomes aware,
54 Notify the HP of any Security Incident of which it becomes aware, provided, however,the
obligation to report a Security Incident shall not include Immaterial incidents, such as
unsuccessful attempts to penetrate Claims Administrator's Information systems
55 Ensure that any agents, including a subcontractor, to whom It provides PPI and/or EPHI
received from, or created or received by the Claims Administrator on behalf of, the HP,
agree to the same restrictions and conditions as outlined In the HIPAA Rules that apply
to a Business Associate with respect to such Information,
56 Make available PPI as required by 45 CFR 164 524,
57 Make available PPI for amendment and Incorporate any amendments to PPI as required
by 45 CFR 164 526,
58 Make available the information required to provide an accounting of disclosures as
required by 45 CFR 164 528,
59 Make Its internal practices, policies, procedures, books, and records relating to the use
and disclosure of PPI or PHI and/or the protection of EPHI received from, or created or
received by the Claims Administrator on behalf of, the HP available to the Secretary for
purposes of determining the HP's compliance with the HIPAA Rules, and
510 Restrict the use and disclosure of PPI in accordance with 45 CFR 164 522 and
consistent with the Claims Administrator's policies, procedures and practices
6. The Claims Administrator's Privacy-Related Services Regarding Requests by Individuals
Upon receipt,the HP shall immediately provide notice to and forward any and all individual
requests received pursuant to 45 CFR Sections 164 522, 164 524, 164 526 or 164 528 of the
BUSINESS ASSOCIATE AGREEMENT -3- 012190(05-2008)
HIPAA Rules (collectively referred to as the"Requests")consistent with Exhibit D-1 Upon the
Claims Administrator's receipt of the Requests, either from the HP or directly from the Individual,
the Claims Administrator shall
61 Evaluate each request consistent with the HIPAA Rules and the Claims Administrator's
policies, procedures and practices,
62 For Requests that may affect the policies, procedures or practices of the HP, coordinate
with the HP about evaluation of the Requests and mutually agree on the result,
63 For Requests that may involve the HP's other Business Associates, request information
from the Business Associates identified by the HP necessary for fulfilling the Requests,
64 Communicate the result of the evaluation directly to the Individual within the legal
timeframes established for each type of request, and
65 Notify the HP of the outcome of each Request identified by the HP at the time of notice to
the Claims Administrator, and
66 Implement each Request that is granted
Such services shall be included in the Claims Administrator's Administration Fee set forth in
Attachment C in the Contract
7. HP's Notice of Privacy Practices
71 Preparation of the HP's Notice of Privacy Practices Claims Administrator will provide the
HP a copy of notice of privacy practices as it relates to the Claims Administrator's
functions and activities contained in the Contract and this Agreement, which the HP shall
incorporate into the HP's Notice of Privacy Practices (the"Privacy Notice"),
72 Amendment of the HP's Privacy Notice the HP shall be responsible for modifying the
Privacy Notice in the event that the HP, the Plan Sponsor or the Claims Administrator
materially changes its privacy policies, procedures or practices that affect the Privacy
Notice The party necessitating the change to the Privacy Notice shall bear any
reasonable costs associated with revising and distributing the Privacy Notice The HP,
the Plan Sponsor and the Claims Administrator will not institute such material change
before the effective date of the HP's revised Privacy Notice
7.3 Distribution of the HP's Privacy Notice of Privacy Practices The HP shall be responsible
for the distribution of its Privacy Notice, and any revisions to its Privacy Notice within a
reasonable time
8. Term and Termination
81 Term The Term of this Agreement shall begin as of the Effective Date contained herein
and shall remain in effect for the duration of the Contract This Agreement shall
automatically renew for the additional terms of any Contract renewal or subsequent
Administrative Services Contract between Claims Administrator and the Plan Sponsor
82 Termination for Breach of Privacy Obligations The HP will have the right to terminate
the Contract if the Claims Administrator has engaged in a pattern of activity or practice
that constitutes a material breach or violation of the Claims Administrator's obligations
regarding PPI under this Agreement The contractual requirements for termination are
outlined in the Contract
BUSINESS ASSOCIATE AGREEMENT -4- 012190(05-2008)
83 Effect of Termination
a Return or Destruction of PPI Upon Termination of Contract Upon cancellation,
termination, expiration or other conclusion of the Contract, the Claims
Administrator will, if feasible, return to the HP or else destroy PPI, in whatever
form or medium that the Claims Administrator, created or received for or from the
HP, including all copies of and any data or compilations derived from such PPI
that allow identification of any Individual The Claims Administrator will complete
such return or destruction as promptly as practical, but not later than sixty days
after the effective date of the cancellation, termination, expiration or other
conclusion of the Contract
b. Reimbursement The Plan Sponsor will reimburse the Claims Administrator's
reasonable costs and expenses incurred in returning or destroying such PPI
c Disposition When Return or Destruction of PPI Is Not Feasible I n the event that
returning or destroying the PPI is not feasible as determined by the Claims
Administrator, the Claims Administrator will limit further use or disclosure of the
PPI to those purposes that make their return to the HP or destruction infeasible
and shall extend the privacy protections contained herein to that PPI for as long
as the Claims Administrator retains it
9. Order of Precedence. This Agreement shall supersede and replace any and all provisions in
the Contract concerning confidentiality or privacy of PPI In addition, the notice provisions of this
Agreement shall prevail over the Contract only to the extent that such notice is related to the
obligations contained herein Except as otherwise provided in this section, in the event that any
other terms or conditions contained in this Agreement conflict or are inconsistent with the
Contract, the terms and conditions of the Contract shall prevail
IN WITNESS WHEREOF,the parties have signed this Agreement effective as of the date indicated
above
CLAIMS ADMINISTRATOR
Its: President and Chief Executive Officer
PLAN SPONSOR AND HEALTH PLAN (HP)
Its:
Dated: o?'CVa` a
BUSINESS ASSOCIATE AGREEMENT -5- 012190(05-2008)
EXHIBIT D-1
NON-ERISA GROUP BUSINESS ASSOCIATE AGREEMENT
Notification Requirements
Privacy-Related Services Regarding Requests
All notices required under Section 6 of this Agreement shall be given In writing, delivered by facsimile or
In person, and addressed as follows
HP:
Name ��`GE'�-t`( F)w Lte,
Department jDyl"LoLi i_- tr %5 t.2w Low
Telephone Number a.Z51-43 -95LD-sc;n0
Fax Number a53-Es 0 - Loa-70
Claims Administrator:
Premera Blue Cross Complaints and Appeals Department
P O Box 91102
Seattle, WA 98111-9202
Telephone 1 800 345 6784
Fax 425 918 5592
BUSINESS ASSOCIATE AGREEMENT -6- 012190(05-2008)
BUSINESS ASSOCIATE AGREEMENT AMENDMENT CHANGES
QUESTION ANSWER
Why are the business associate agreements being A 2009 federal law, the Health Information Technology
amended for Economic and Clinical Health Act (HITECH) made
changes to the HIPAA privacy regulations The
HITECH Act supports the goal of creating a nationwide
system to electronically exchange protected health
information (PHI) The law extends the reach of some
current privacy requirements and adds new rights,
responsibilities and enforcement provisions
The law requires HIPAA covered entities to send notice
to affected individual of unauthorized disclosures or
uses of PHI that has not been encrypted or otherwise
secured (these are called "breaches") if they are
determined to poses the risk of serious harm to the
affected individual Depending on how many
individuals are affected by the breach, additional
parties may also need to be notified
The primary purpose of the amendment is to
enumerate our notice and reporting responsibilities as
your business associate under the HITECH Act in
regard to any breaches of unsecured PHI made by us
or one of our subcontractors
In addition, interim regulations implementing the
Genetic Information and Nondiscrimination Act of 2008
(GINA) also amended the privacy rules to provide that
genetic information be included in the definition of
protected health information
These changes must be reflected in covered entities'
business associate agreements
What changes have been made to the agreements? • Technical corrections to HIPAA citations have been
made
• The definition of"PHI" has been revised to refer
directly to the regulation This is to accommodate
the GINA changes to the HIPAA regulations in order
to make sure that genetic information is protected as
PHI
• Language has been add to the"Minimum Necessary"
provision to set forth the requirement that limited
data sets be used whenever feasible
• New language regarding breaches of unsecured PHI
has been added to section 5, "Other Privacy
Obligations of the Claims Administrator"
• The subsection called "Termination for Breach of
Privacy Obligations" has been rewritten to clarify that
either party has the right to terminate the
administrative services contract if the other party has
engaged in a pattern of activity that materially
breaches its obligations regarding PHI
What is the"limited data set"mentioned above? A"limited data set"omits all but two of the 18 identifiers
of PHI This means the data does not include
identifiers like names, social security, numbers, street
addresses or medical record numbers However,
because dates(such as date of birth or of death) and
zip codes are allowed to be retained in a limited data
set, the information is not considered to be de-identified
as required by HIPAA It is still PHI and must be
secured against unauthorized access in some other
way, such as by encryption
Does use of a limited data set change the information No Our reports already meet limited data set
you provide in your monthly and annual reports to us? requirements
What is the effective date of the amendment? February 17, 2010 However, the breach notice
requirements for both covered entities and business
associates were effective as of September 23, 2009, by
regulation
PREMERA 10
AMENDMENT
TO THE BUSINESS ASSOCIATE AGREEMENT
FOR GROUPS NOT SUBJECT TO ERISA
BETWEEN
PREMERA BLUE CROSS
AND
CITY OF KENT
This Amendment to the Business Associate Agreement("the Agreement") shall be entered Into by and between Premera
Blue Cross (the"Claims Administrator")and the group named above (the"Plan Sponsor"and the"Health Plan (HP))"
The Amendment shall be effective on February 17, 2010, except the changes to subsection 5 15, which shall have a later
effective date as prescribed by law This Amendment shall be made part of the Administrative Services Contract (the
"Contract") between the Claims Administrator and the Plan Sponsor
Recitals
1 In February 2009, Congress enacted the Health Information Technology for Economic and Clinical Health Act
(the"HITECH Act"), which amended the Health Insurance Portability and Accountability Act of 1996 and its
implementing regulations codified at 45 CFR Parts 160 and 164(collectively"HIPAA")
2 The HITECH Act requires Covered Entities to amend existing Business Associate agreements
3 The Plan Sponsor, the HP and the Claims Administrator previously executed the Agreement to cover activities
performed by Claims Administrator under the Contract The Claims Administrator, the HP and the Plan Sponsor
desire to amend the Agreement to comply with the HITECH Act
NOW, THEREFORE, in consideration of these premises and the mutual promises and agreements hereinafter set forth,
the Plan Sponsor, the HP and the Claims Administrator hereby agree to amend the Agreement as follows
1 Delete the reference to subparts A, C, and E in Recital 2 The recital shall now read "In pertinent part, the
implementation regulations for HIPAA, codified at 45 C F R Parts 160, 162 and 164, and as amended
(collectively referred to as the"HIPAA Rules") require covered entities, such as the HP, to maintain a written
agreement with specific provisions concerning PHI and EPHI with its Business Associates (as defined in 45 C F.R
160 103 and as amended) "
2 Delete the second sentence of Section 1 and replace it with "Capitalized terms used, but not otherwise defined
herein, shall have the same meaning as those terms in the HITECH Act or 45 CFR Parts 160 and 164"
3 Delete the definition of"PHI" in Section 1 and replace it with the following "PHI 'PHI' (Protected Health
Information) shall mean information that meets the requirements in 45 CFR 160 103 or as amended "
4 Add a sentence to the end of Section 4 stating "When feasible, as determined by the party maintaining PPI, the
HP, Plan Sponsor and Claims Administrator shall create, use or disclose a Limited Data Set "
5 Add a clause to the end of subsection 5 9 stating ", including documentation sufficient to meet the administrative
requirements of 45 CFR§164 414 for breach notifications described in subsection 5 11, below,"
6 Add a new subsection 5 11 stating "Report promptly information to the HP about any use or disclosure of
Unsecure PHI of the HP's members not permitted or required by the Contract, the Agreement, or law caused by
the Claims Administrator or one of its subcontractors for which it becomes aware and that Claims Administrator
determines Compromises the Security or Privacy of the PHI (collectively referred to as a"Claims Administrator
Breach"), and"
7 Add a new subsection 5 12 stating "Notify, or direct its subcontractor to notify, an Individual as required by 45
CFR§164 404, the media as required by 45 CFR§164 406, and the Secretary as required by§164 408(b)for a
Claims Administrator Breach reported to the HP under subsection 5 11, above", and
8 Add a new subsection 5 13 stating "Provide the HP with the information necessary about any Claims
Administrator Breach in order for the HP to include such information in the HP's log of Breaches that must be filed
annually with the Secretary as required by 45 CFR§164 408(c), and"
021112(10-2009)
An Independent Licensee of the Blue Cross Blue Shield Association
9 Add anew subsection 5 14 stating "Comply with the following HIPAA provisions administrative safeguards(45
CFR§164 308), physical safeguards (45 CFR§164 310), technical safeguards (45 CFR§164 312), policies and
procedures and documentation requirements (45 CFR§164 316), and Business Associate requirements (45 CFR
§164 502(e)(2) and 45 CFR§164 504(e)), and"
10 Add anew subsection 5 15 stating "Comply with Accounting for Disclosure(45 CFR§164 528) in the event that
Department of Health and Human Services rules clarify that the HP has one or more Electronic Health Records
that Claims Administrator creates, accesses, uses or maintains"
11 Subsection 8 2 shall be deleted in its entirety and replaced with `Termination for Breach of Privacy Obligations
Either Party shall have the right to terminate the Contract as outlined in the Contract if the other party has
engaged in a pattern of activity or practice that constitutes a material breach or violation of its obligations
regarding PPI under this Agreement, the Contract or law In the event that the breach cannot be cured and both
parties determine that termination is not feasible, the nonbreaching party may report such breach to the
Secretary
The HP agrees that the signature of the Plan Sponsor to this Amendment shall bind both the Plan Sponsor and the HP
IN WITNESS WHEREOF, the parties have signed this Amendment effective as of the dates indicated above
CLAIMS ADMINISTRATOR
XAM-�
Its- President and Chief Executive Officer
Dated: November 20, 2009
PLAN SPONSOR AND HEALTH PLAN (HP)
Its:
Dated: C2
021112(10-2009)