BUSINESS ASSOCIATE AGREEMENT

Last updated May 27, 2019

Recitals:

Whereas, Opencare has entered into an agreement with Dental Practice for the purposes of performing certain services for Dental Practice (the terms and conditions of such agreement between the parties hereinafter referred to as the “Services Agreement”);

Whereas, pursuant to the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (the “Act”) and the “Health Information Technology for Economic and Clinical Health Act,” part of the “American Recovery and Reinvestment Act of 2009” (“HITECH Act”), the Department of Health and Human Services (“HHS”) has promulgated regulations at 45 C.F.R. Parts 160-64, including regulations implementing certain privacy requirements (the “Privacy Rule”), certain security requirements regarding electronic media (“Security Rule”) and certain breach notification requirements (“Breach Notification Rule”), each as amended from time to time (the Act, HITECH Act, the Privacy Rule, the Security Rule and the Breach Notification Rule referred to collectively herein as “HIPAA”);

Whereas, Opencare may receive, maintain, retain, record, store, transmit, hold, use and/or disclose Protected Health Information (as defined below) in conjunction with the services being provided under the Services Agreement, thus necessitating a written agreement that meets applicable requirements of the Privacy Rule and the Security Rule, and making advisable certain additional agreements regarding HIPAA; and

Whereas, Opencare and Dental Practice desire to satisfy the foregoing Privacy Rule and Security Rule requirements through this Agreement, and otherwise to address related matters regarding HIPAA on the terms and conditions set forth herein.

Now therefore, in consideration of the mutual agreements and undertakings of the parties, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:

  1. Definitions:

    The following terms shall have the following meaning when used in this Agreement:

    1. “Breach” shall have the same meaning as the term “breach” in 45 C.F.R. § 164.402.
    2. “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. § 164.501.
    3. “Electronic Protected Health Information” shall mean Protected Health Information that is “electronic protected health information” as defined in 45 C.F.R. § 160.103.
    4. “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).
    5. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Dental Practice, or created, maintained or received on behalf of Dental Practice.
    6. “Unsecured Protected Health Information” shall mean Protected Health Information that is “unsecured protected health information” as defined in 45 C.F.R. § 164.402.
    7. “Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103.
    8. “Secretary” shall mean the Secretary of HHS or the designee of the Secretary of HHS.
    9. “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits Protected Health Information on behalf of Opencare.

    2. Any capitalized term not specifically defined herein shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.

  2. Obligations and Activities of Opencare:

    1. Opencare agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
    2. Opencare agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.
    3. Opencare agrees to report to the Dental Practice any use or disclosure of 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. The parties acknowledge and agree that this Section 2(c) constitutes notice by Opencare to Dental Practice of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Dental Practice shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Opencare’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent Opencare is aware, in unauthorized access, use or disclosure of Electronic Protected Health Information.
    4. In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Opencare agrees to ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Opencare agree in writing to the same restrictions, conditions, and requirements that apply to Opencare under this Agreement with respect to such Protected Health Information.
    5. Opencare agrees to make available Protected Health Information in a Designated Record Set to Dental Practice as necessary to satisfy Dental Practice’s obligations under 45 C.F.R. § 164.524 or any business associate agreement.
    6. Opencare agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Dental Practice pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Dental Practice’s obligations under 45 C.F.R. § 164.526 or any business associate agreement.
    7. Opencare agrees to maintain and make available the information required to provide an accounting of disclosures to Dental Practice as necessary to satisfy Dental Practice’s obligations under 45 C.F.R. § 164.528 or any business associate agreement.
    8. To the extent that Opencare is to carry out one or more of Dental Practice’s obligations under Subpart E of 45 C.F.R. Part 164, Opencare agrees to comply with the requirements of Subpart E that apply to Dental Practice in the performance of such obligations.
    9. Opencare agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA.

  3. Permitted Uses and Disclosures by Opencare:

    1. Opencare may only use or disclose Protected Health Information as necessary to perform the Services Agreement. In addition, Opencare is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)-(c).
    2. Opencare may use or disclose Protected Health Information as Required By Law.
    3. Opencare agrees to make uses and disclosures and requests for Protected Health Information consistent with Dental Practice’s minimum necessary policies and procedures
    4. Opencare may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Dental Practice, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below.
    5. Opencare may use Protected Health Information for the proper management and administration of the Opencare or to carry out the legal responsibilities of the Opencare.
    6. Opencare may disclose Protected Health Information for the proper management and administration of the Opencare or to carry out the legal responsibilities of the Opencare, provided the disclosures are Required By Law, or Opencare 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 Opencare of any instances of which it is aware in which the confidentiality of the information has been breached.
    7. Opencare may provide Data Aggregation services relating to the Health Care Operations of Dental Practice.

  4. Obligations of Dental Practice:

    1. Dental Practice shall notify Opencare of any limitation(s) in the notice of privacy practices of Dental Practice or, if Dental Practice is a Business Associate, any Covered Entity served by Dental Practice, under 45 C.F.R. 164.520, to the extent that such limitation may affect Opencare’s use or disclosure of Protected Health Information.
    2. Dental Practice shall notify Opencare 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 Opencare’s use or disclosure of Protected Health Information.
    3. Dental Practice shall notify Opencare of any restriction on the use or disclosure of Protected Health Information that Dental Practice has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Opencare’s use or disclosure of Protected Health Information.
    4. Except with respect to uses and disclosures by Opencare of Protected Health Information under Sections 3(e), 3(f) and 3(g), above, Dental Practice shall not request Opencare to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Dental Practice.

  5. Term and Termination:

    1. Term. The Term of this Agreement shall commence as of the Effective Date and shall terminate upon the termination of the Services Agreement or on the date Dental Practice terminates this Agreement for cause as authorized in subsection (b) of this Section 5, whichever is sooner.
    2. Termination for Cause. Opencare authorizes termination of this Agreement by Dental Practice upon written notice to Opencare if Dental Practice determines Opencare has violated a material term of this Agreement and Opencare has not cured the breach or ended the violation within thirty (30) days of Dental Practice providing written notice thereof to Opencare.
    3. Obligations of Opencare Upon Termination. Upon termination of this Agreement for any reason, Opencare shall:
      1. Retain only that Protected Health Information which is necessary for Opencare to continue its proper management and administration or to carry out its legal responsibilities;
      2. Return to Dental Practice or Dental Practice’s designee (to the extent permitted by HIPAA), or, if agreed to by Dental Practice, destroy the remaining Protected Health Information that the Opencare still maintains in any form;
      3. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. 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 Opencare retains Protected Health Information;
      4. Not use or disclose Protected Health Information retained by Opencare other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 3 (e) and (f), above, which applied prior to termination; and
      5. Return to Dental Practice, or, if agreed to by Dental Practice, destroy Protected Health Information retained by Opencare when it is no longer needed by Opencare for its proper management and administration or to carry out its legal responsibilities.
    4. Survival. The obligations of Opencare under this Section 5 shall survive the termination of this Agreement.

  6. Miscellaneous:

    1. Regulatory References. A reference in this Agreement to a section in the Privacy Rule, the Security Rule, or to another provision of HIPAA means the provision as in effect or as amended.
    2. Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the Dental Practice to comply with the requirements of the HIPAA and any other applicable law.
    3. Interpretation. Any ambiguity in this Agreement shall be resolved to permit compliance with HIPAA.
    4. Governing Law and Disputes. The construction, interpretation and performance of this Agreement and all transactions under this Agreement shall be governed and enforced pursuant to the laws of the province Ontario and the laws of Canada applicable in that province, without giving effect to any rule or principle of conflicts of law that may provide otherwise, except to the extent such laws are conflict with HIPAA. The Parties agree that all disputes arising out of or relating to this Agreement will be subject to mandatory binding arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of submission, as modified by this Section 6(d). The arbitration will be heard and determined by a single arbitrator selected by mutual agreement of the Parties, or, failing agreement within thirty (30) days following the date of receipt by the respondent of the claim, by JAMS. Such arbitration will take place in Toronto, Ontario. The arbitration award so given will be a final and binding determination of the dispute, and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the results of the arbitration or as otherwise required by law, neither Party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written agreement of both Parties.
    5. No Third Party Beneficiary. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.
    6. Controlling Provisions. In the event that it is impossible to comply with both the Services Agreement and this Agreement, the provisions of this Agreement shall control with respect to those provisions of each agreement that expressly conflict. This Agreement shall supersede and replace any prior Opencare agreements between the parties, with respect to any actions of Opencare after the Effective Date.
    7. Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives.
    8. Severability. In the event any provision of this Agreement is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect if it reasonably can be given effect.
    9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.
    10. Notices. Any notice, consent, request or other communication required or permitted under this Agreement shall be in writing and delivered personally by hand delivery or overnight delivery by a nationally recognized service. Notice that is sent by overnight courier shall be deemed given one (1) business day after it is dispatched, provided that receipt is acknowledged.