Business Associates Agreement Between Empower Hope and Health Care Clinician Member #

This BUSINESS ASSOCIATE AGREEMENT (the “BA Agreement”) is incorporated by reference into and made a part of the Empower Hope Terms of Service, and is entered into by and between Empower Hope, Inc. (“Empower Hope” or “we”) and the applicable healthcare provider that has agreed to the Terms of Service (“Clinician”); provided, however, that the terms of this BA Agreement apply only if and solely to the extent that Empower Hope receives, creates, maintains, or transmits Protected Health Information relating to patients of Clinician in connection with the Covered Services (defined below) that Empower Hope, as a Business Associate, performs for or on behalf of Clinician, as a Covered Entity. Empower Hope, in its capacity as a Business Associate is referred to herein as “Business Associate”, and Clinician, in his/her/its capacity as a Covered Entity, is referred to herein as “Covered Entity.” 

WITNESSETH 

WHEREAS, the Health Insurance Portability and Accountability Act of 1996, as amended by the HITECH Act, and the regulations promulgated thereunder (collectively, “HIPAA”), protect the confidentiality of health information; and 

WHEREAS, in order to comply with the business associate requirements of HIPAA, a Business Associate and a Covered Entity must enter into an agreement that governs the uses and disclosures of such confidential health information by the Business Associate. 

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 

1. 1. Definitions. 

• For purposes of this BA Agreement, the following terms shall have the following meanings: 
• “Breach” when capitalized, shall have the meaning as the term “breach” in 45 C.F.R. 164.402; with respect to all other uses of the word “breach” in this BA Agreement, the word shall have its ordinary contract meaning. 
• “Business Associate” shall generally have the same meaning as the term “business associate” in 45 C.F.R. § 160.103. 
• “Covered Entity” shall generally have the same meaning as the term “covered entity” in 45 C.F.R. § 160.103. 
• “Covered Services” shall mean the services performed by Empower Hope for or on behalf of Clinician as a Covered Entity in connection with Clinician’s use of the Empower Hope Tools that causes Empower Hope to receive, create, maintain or transmit PHI and establishes a Business Associate relationship between Clinician and Empower Hope. 
• “Empower Hope Tools” shall mean the tools that Empower Hope makes available to Clinician through the Service (as defined in the Terms of Service) and identifies as appropriately secure for the transmission of Protected Health Information. 
• “Electronic Protected Health Information” or “ePHI” shall have the meaning given to such term under the Privacy Rule and the Security Rule, including, but not limited to, 45 C.F.R. 160.103, and is limited to ePHI created, received, maintained or transmitted by Empower Hope for, or on behalf of, or from Clinician in connection with Empower Hope’s provision of the Covered Services. 
• “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164. 
• “HITECH Act” shall mean the Health Information Technology for Economic and Clinical Health Act, found in Title XIII of the American Recovery and Reinvestment Act of 2009, effective February 17, 2009. 
• “Individual” shall have the meaning as the term “individual” in 45 C.F.R. 160.103, and shall include a personal representative in accordance with 45 C.F.R. 164.502(g). 
• “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Parts 160 and 164, Subparts A, D, and E, as currently in effect. 
• “Protected Health Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103 and is limited to PHI created, received, maintained or transmitted by Empower Hope for, on behalf of, or from Clinician in connection with Empower Hope’s provision of the Covered Services. 
• “Required by Law” shall have the same meaning as the term “required by law” in 45 C.F.R. 164.103. 

• “Secretary” shall mean the Secretary of the U.S. Department of Health and Human Services or any office or person within the U.S. Department of Health and Human Services to which/whom the Secretary has delegated his or her authority to administer the Privacy Rule and the Security Rule, such as the Director of the Office for Civil Rights. 
• “Security Incident” shall have the same meaning as the term “security incident” in 45 C.F.R. § 164.304. 
• “Security Rule” shall mean Security Standards for the Protection of Electronic Protected Health Information, 45 C.F.R. Part 160 and Part 164, Subparts A and C. 
• “Subcontractor” shall have the meaning as the term “subcontractor” in 45 C.F.R. §160.103. 
• “Unsecured Protected Health Information” shall have the same meaning as the term “unsecured protected health information” in 45 C.F.R. 164.402, and is limited to the PHI created, received, maintained or transmitted by Business Associate from or on behalf of Covered Entity. 
• All references to “days” in this BA Agreement shall mean calendar days. Capitalized terms used not defined herein shall have the meanings ascribed to them in the Privacy Rule or Security Rule or the applicable Terms of Service. 

2. 2. Business Associate Obligations. 

2.1 General. Business Associate agrees not to use or disclose PHI other than as permitted or required by this BA Agreement, the Terms of Service or as Required By Law. 

2.2 Appropriate Safeguards. Business Associate agrees to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to ePHI, to prevent any use or disclosure of PHI other than as provided for by this BA Agreement. 

2.3 Subcontractors. Business Associate agrees, in accordance with 45 C.F.R. § 164.502(e)(1)(ii) and § 164.308(b)(2), if applicable, to require that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree to restrictions and conditions that are no less restrictive than those that apply to Business Associate with respect to such information. 

2.4 Reporting of Unauthorized Use or Disclosures. 

2.4.1 Business Associate agrees to report to Clinician any use or disclosure of Clinician’s Protected Health Information not provided for by this Agreement, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. Notice is hereby deemed provided, and no further notice will be provided, for unsuccessful Security Incidents, which shall include, but not be limited to, unauthorized access, use, disclosure, modification, or destruction, such as pings and other broadcast attacks on a firewall, port scans, unsuccessful login attempts, denial of service attacks, or interception of encrypted information, so long as such incidents do not result, to the extent Business Associate is aware, in unauthorized access, use or disclosure of Clinician’s Electronic Protected Health Information. 

2.4.2 For all reporting obligations under this BA Agreement, the parties acknowledge that, due to the nature of the Covered Services, Business Associate may not know the nature of the PHI or the identities of the Individuals about whom the PHI relates. Accordingly, Business Associate may be limited in its ability to provide information regarding the identities of the Individuals who may have been affected by a Security Incident or Breach affecting Clinician’s PHI, or in its ability to provide detailed information regarding what Clinician PHI was affected by a Security Incident or Breach. 

2.5 Internal Practices, Books and Records. Business Associate shall make its internal practices, books and records relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of Clinician, available to the Secretary, for purposes of determining Business Associate’s and Covered Entity’s compliance with the Privacy Rule and Security Rule. 

2.6 Access to Protected Health Information. Business Associate shall make Clinician’s Protected Health Information in a Designated Record Set available to Clinician in order for Clinician to comply with its obligations under 45 C.F.R. 164.524 to provide Individuals with access to their Protected Health Information. 

2.7 Amendments to Protected Health Information. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Clinician pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. 164.526. 

2.8 Accounting of Disclosures. 

2.8.1 Business Associate agrees to maintain and make available the information required to provide an accounting of all disclosures to Clinician as necessary to satisfy Clinician’s obligations under 45 C.F.R. 164.528. 

2.8.2 Notwithstanding Section 2.8.1, for repetitive disclosures of Protected Health Information that Business Associate makes for a single purpose to the same person or entity, Business Associate may record: (a) the Disclosure Information for the first of these repetitive disclosures; (b) the frequency, periodicity or number of these repetitive disclosures made during the accounting period; and the date of the last of these repetitive disclosures. 

3. 3.Permitted Uses and Disclosures. 

3.1 General. Business Associate agrees to use and disclose PHI only in a manner consistent with this BA Agreement, the Privacy Rule, or Security Rule, and in connection with providing the Covered Services. 

3.2 De-identification and Aggregation. Business Associate is authorized to (i) use Clinician Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)-(c), and (ii) provide Data Aggregation services relating to the Health Care Operations of Clinician. 

3.3 Management, Administration and Legal Responsibilities. 

3.3.1 Business Associate may use and disclose PHI for the proper management and administration of Business Associate or to carry out its legal responsibilities. 

3.3.2 Business Associate may disclose Protected Health Information for the proper management and administration of the 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 notified Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. 

3.3.3 If Business Associate receives a court order, subpoena, or governmental request for documents or other information containing Clinician’s Protected Health Information, if legally permissible, Business Associate will use reasonable efforts to notify Clinician of the receipt of the request to provide Clinician an opportunity to respond. Business Associate may comply with such order, subpoena, or request as Required by Law or permitted by law. 

3.4 Reporting Violations of Law. Consistent with the requirements of 45 C.F.R. 164.502(j)(1), Business Associate may disclose PHI to report violations of law or professional or clinical standards to appropriate federal and state authorities. 

4. 4.Covered Entity Obligations. 

4.1 Notice of Privacy Practices. Clinician shall notify Business Associate of limitation(s) in its Notice of Privacy Practices, to the extent such limitation affects Business Associate’s use or disclosure of PHI. 

4.2 Individual Permission. Clinician shall notify Business Associate of any changes in or revocation of permission by an Individual to use or disclose PHI, to the extent such changes or revocation affect Business Associate’s permitted or required uses or disclosures of PHI. 

4.3 Restrictions. Clinician shall notify Business Associate of restriction(s) in the use or disclosure of PHI that Clinician has agreed to, to the extent such restriction affects Business Associate’s permitted uses or disclosures of PHI. 

4.4 Consents and Authorizations. Clinician represents and warrants that any and all consents, authorizations, or other permissions necessary under the Privacy Rule or other applicable law (including state law) for the transmission of PHI in connection with the Covered Services and for the uses and disclosures specified in this BA Agreement and in accordance with the Terms of Service have been properly secured and communicated to Business Associate. 

4.5 Marketing. Clinician represents and warrants that it has obtained any and all authorizations from Individuals as necessary for any use or disclosure of PHI for its Marketing in connection with the Covered Services, unless the related communication is made without any form of remuneration (i) to describe medical services or products; (ii) for treatment of the Individual; or (iii) for case management or care coordination for the Individual or to direct or recommend alternate treatments, therapies, Clinicians or settings. 

4.6 Permissible Requests by Covered Entity. Clinician shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164, except with respect to uses and disclosures by Business Associate of Protected Health Information under Section 3.3 above. 

5. 5.Term and Termination. 

5.1 Term. The term of this BA Agreement shall commence on and this BA Agreement shall be effective as of the date that Clinician agrees to the Empower Hope Terms of Service by electronically registering as a Empower Hope member, and shall continue in effect for as long as Clinician is registered as a Empower Hope member, or until termination as provided in this Section 5. 

5.2 Termination for Cause. In the event either party determines that the other has materially breached a term of this BA Agreement, and such breach continues for thirty (30) days after written notice of such breach has been received, the party claiming a breach shall have the right to terminate this BA Agreement. Upon termination of this BA Agreement, Empower Hope may immediately terminate Clinician’s Empower Hope membership. 

5.3 Effect of Termination. The parties hereby acknowledge that Business Associate’s return or destruction of PHI is not feasible, and therefore, Business Associate may retain a copy of such Protected Health Information provided that: (i) the provisions of this Agreement shall continue to apply to any such information retained following termination of this Agreement; and (ii) Business Associate shall limit uses and disclosures of such PHI to those purposes that make the return or destruction thereof not feasible, for as long as Business Associate maintains such PHI. 

6. 6.Miscellaneous. 

6.1 Regulatory References. A reference in this BA Agreement to a section in HIPAA, the HITECH Act, the Privacy Rule, or the Security Rule means the section as in effect or as amended at the time. 

6.2 Survival. The respective rights and obligations of the parties under Section 5.3 of this BA Agreement shall survive the termination of this BA Agreement. 

6.3 Interpretation. Any ambiguity in this BA Agreement shall be resolved in favor of a meaning that permits the parties to comply with the Privacy Rule and Security Rule. 

6.4 Controlling Provisions. Except to the extent specified in this BA Agreement, all of the terms and conditions governing Clinician’s use of the Covered Services specified in the Terms of Service shall be and remain in full force and effect, and in the event of any conflict between this BA Agreement and such terms and conditions, this BA Agreement shall govern and control. If Clinician is an employee, contractor, or other workforce member of an enterprise with whom Empower Hope has also executed a Business Associate Agreement intended to cover use by the enterprise’s workforce members, that enterprise Business Associate Agreement will apply to Protected Health Information that Empower Hope receives, creates, maintains, or transmits in connection with Clinician’s use of those Empower Hope features as specified in the underlying services agreement between Empower Hope and the enterprise. 

6.5 Amendment. This BA Agreement is incorporated by reference into and made a part of the Terms of Service, and as such may be amended from time to time by Empower Hope as described therein, subject to applicable law. Continued use of the Services following amendment of this BA Agreement shall indicate Clinician’s acceptance of such amendment. 

6.6 Independent Relationship. None of the provisions of this BA Agreement are intended to create, nor will they be deemed to create, any relationship between the parties other than that of independent parties contracting with each other as independent contractors solely for the purposes of effecting the provisions of this BA Agreement and the terms and conditions governing Clinician’s use of the Covered Services. 

6.7 Notices. We may provide notices via postings on www.Empower Hope.ai. All notices under this BA Agreement shall be sent in writing by traceable carrier to the addresses indicated below or such other address as a party may indicate with at least ten (10) days’ prior written notice to the other party. Empower Hope may provide notices to Clinician under this BA Agreement at the email address specified below. Notices will be effective upon receipt. Any notices that do not comply with this section shall have no legal effect. 
 
ADDRESSES FOR NOTICES 
FOR EMPOWER HOPE: 
Empower Hope 
ATTN: Legal Department 
304 S. Jones Blvd. Ste 1061 

Las Vegas, NV 89107 
 
FOR CLINICIAN: 
The notice address for Clinician is the email address or physical address associated with Clinician’s Empower Hope member account. 

6.7 Choice of Law and Jurisdiction. This BA Agreement, as well as all related disputes, shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of law provisions, regardless of from where you access the Covered Services. You agree that the exclusive place of jurisdiction for all disputes or claims relating to this BA Agreement is San Francisco County, California, or the United States District Court for the Northern District of California, except as otherwise agreed by the parties or as described in the Arbitration Agreement set forth in the Terms of Service.