HomeMy WebLinkAboutC-6182 - Business Associate Agreement C)0
BUSINESS ASSOCIATE AGREEMENT
BETWEEN SHIRA A. SCHLESINGER, MD, MPH, PC AND
CITY OF NEWPORT BEACH
is entered this 18TH
THIS BUSINESS ASSOCIATE AGREEMENT ("Agreement")
day of December 2014 ("Effective Date") between THE CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City') and SH IRA A. SCHLESINGER,
MD, MPH, PC, a California sole proprietor ("Evaluator"), whose address is 3044 E. 5th
Street Long Beach, California 90814, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the
City.
B. Evaluator is an independent contractor of the City tasked with assisting the
Orange County Fire Chiefs Association, Newport Beach Fire Department
(NBFD), and other members of the Orange County Alternate Destination
Community Paramedicine Project Advisory Council (Advisory Council) in
fulfillment of the requirements of the California EMS Authority (EMSA) as an
approved Pilot Site for the California Office of Statewide Health Planning and
Development (OSHPD) approved Community Paramedicine pilot project. The
purpose of the project is to determine whether paramedics working in an
expanded role in their community can help improve health system integration,
efficiency, and/or fill identified health care needs. The Pilot Project will allow the
Newport Beach Fire Department, Orange County EMS Agency (OCEMS) and the
EMSA to generate, collect and analyze data that will examine the practice of
community paramedicine and serve as a basis to recommend changes to
existing statutes and regulations to allow transport of patients with specified
conditions that can be managed in health care settings to alternate locations
other than an acute care emergency department, such as an urgent care or
general medical clinic.
C. The Evaluator will work in a volunteer capacity with the NBFD and the Advisory
Council to collect, maintain, and analyze data on EMS responses who are
deemed potentially eligible for Alternate Destination Transport, or who were
transported to an Alternate Destination (Urgent Care Clinic) as part of the
Alternate Destination Pilot Project. Evaluator shall accomplish this by accessing,
collecting, and maintaining patient care and billing data on patients meeting
criteria for the study, contacting the hospitals and billing company to collect
financial transport data, and reporting patient care, hospital outcomes, and billing
data to the California EMSA on behalf of the Fire Department, in accordance with
the Fire Department's obligation to meet reporting requirements as a Community
Paramedicine Pilot Project site.
D. This Agreement is executed to ensure that Evaluator will appropriately safeguard
protected health information ("PHI") that is created, received, maintained, or
transmitted on behalf of the City in compliance with the applicable provisions of
Public Law 104-191 of August 21, 1996, known as the Health Insurance
Portability and Accountability Act of 1996, Subtitle F — Administrative
Simplification, Sections 261, et seq., as amended ("HIPAA"), the regulations
codified at 45 C.F.R. Parts 160 and 164 ("HIPAA Regulations"), and with Public
Law 111-5 of February 17, 2009, known as the American Recovery and
Reinvestment Act of 2009, Title XII, Subtitle D — Privacy, Sections 13400, et seq.,
the Health Information Technology and Clinical Health Act, as amended (the
"HITECH Act").
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
A. General Provisions
1. Meaning of Terms. The terms used in this Agreement shall have the same
meaning as those terms defined in the HIPAA, the HIPAA Regulations, and
the HITECH Act.
2. Regulatory References. Any reference in this Agreement to a regulatory
section means the section currently in effect or as amended.
3. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit
compliance with the HIPAA, the HIPAA Regulations, and the HITECH Act.
B. Obligations of Business Associate
1. Evaluator shall not use or further disclose protected health information ("PHI")
other than as permitted or required by this Agreement or as required by law.
2. Evaluator shall use appropriate safeguards and comply, where applicable,
with the HIPAA Security Rule with respect to electronic protected health
information ("e-PHI") and implement appropriate physical, technical and
administrative safeguards to prevent use or disclosure of PHI other than as
provided for by this Agreement.
3. Evaluator shall report in writing to City each security incident (as defined in
the HIPAA Security Rule) or any use or disclosure of PHI not provided for by
this Agreement no later than three (3) business days after becoming aware of
such security incident or non-permitted use or disclosure. If such security
incident or non-permitted use or disclosure constitutes a breach of unsecured
SHIRA A. SCHLESINGER, MD, MPH, PC Page 2
PHI, then Evaluator shall comply with the requirements of Section (13)(4)
below.
4. Evaluator shall investigate each unauthorized access, acquisition, use or
disclosure of PHI that it discovers to determine whether such unauthorized
access, acquisition, use or disclosure constitutes a reportable breach of
unsecured PHI. If Evaluator determines that a reportable breach of
unsecured PHI has occurred, Evaluator shall notify City of such breach in
writing without unreasonable delay but no later than sixty (60) calendar days
after discovery of the breach, in accordance with 45 C.F.R. §164.410(c). City
shall have sole control over the timing and method of providing notification of
such breach to the affected individual(s), the Secretary of the Department of
Health and Human Services and, if applicable, the media, as required by the
HITECH Act. Evaluator shall reimburse City for its reasonable costs and
expenses in providing the notification, including, but not limited to, any
administrative costs associated with providing notice, printing and mailing
costs, and costs of mitigating the harm (which may include the costs of
obtaining credit monitoring services and identity theft insurance) for affected
individuals whose PHI has or may have been compromised as a result of the
breach.
5. In accordance with 45 CFR 164.502(e)(1) and 164.308(b), ensure that any
subcontractors that create, receive, maintain, or transmit PHI on behalf of
Evaluator agree to the same restrictions, conditions, and requirements that
apply to Evaluator with respect to such information.
6. Make PHI in a designated record set available to City and to an individual
who has a right of access in a manner that satisfies the City's obligations to
provide access to PHI in accordance with 45 CFR §164.524 within thirty (30)
days after receipt of a request.
7. Make any amendment(s) to PHI in a designated record set as directed by the
City, or take other measures necessary to satisfy the City's obligations under
45 CFR §164.526.
8. Maintain and make available information required to provide an accounting of
disclosures to the City or an individual who has aright to an accounting within
sixty (60) days and as necessary to satisfy the City's obligations under 45
CFR §164.528.
9. To the extent that Evaluator is to carry out any of the City's obligations under
the HIPAA Privacy Rule, Evaluator shall comply with the requirements of the
Privacy Rule that apply to the City when it carries out that obligation.
10.Make its internal practices, books, and records relating to the use and disclosure
of PHI received from, or created or received by Evaluator on behalf of the City,
SHIRA A. SCHLESINGER, MD, MPH, PC Page 3
available to the Secretary of the Department of Health and Human Services for
purposes of determining Evaluator's and City's compliance with HIPAA, the
HIPAA Regulations, and the HITECH Act.
11.Restrict the use or disclosure of PHI if the City notifies Evaluator of any
restriction on the use or disclosure of PHI that the City has agreed to or is
required to abide by under 45 CFR §164.522.
12.If the City is subject to the Red Flags Rule (found at 16 CFR §681.1 et seq.),
Evaluator agrees to assist the City in complying with its Red Flags Rule
obligations by: (a) implementing policies and procedures to detect relevant
Red Flags (as defined under 16 C.F.R. §681.2); (b) taking all steps necessary
to comply with the policies and procedures of the City's Identity Theft
Prevention Program; (c) ensuring that any agent or third party who performs
services on its behalf in connection with covered accounts of the City agrees
to implement reasonable policies and procedures designed to detect, prevent,
and mitigate the risk of identity theft; and (d) alerting the City of any Red Flag
incident (as defined by the Red Flag Rules) of which it becomes aware, the
steps it has taken to mitigate any potential harm that may have occurred, and
provide a report to the City of any threat of identity theft as a result of the
incident.
C. Permitted Uses and Disclosures by Business Associate
The specific uses and disclosures of PHI that may be made by Evaluator on
behalf of the City include:
1. Extract information from Fire Department's electronic Patient Care Records
on all patients who meet Primary Impression criteria for the Alternate
Destination Pilot Project.
2. Maintain database of all patients who meet Primary Impression criteria for the
Alternate Destination Pilot Project.
3. Deliver a monthly list of eligible Alternate Destination patient candidates to the
Orange County EMS Agency for hospital outcomes follow-up, as permitted for
Quality Assurance purposes.
4. Deliver a monthly list of eligible Alternate Destination patient candidates to the
Fire Department's billing agency for collection of transport charges and claims
data.
5. Contact the billing company on behalf of the Fire Department in order to
discuss reporting of transport charges and claims data.
SHIRA A. SCHLESINGER, MD, MPH, PC Page 4
6. Collect and maintain transport and billing data for all transported patients who
meet criteria for Alternate Destination Pilot Project participation.
7. Collect and maintain database of patient care and billing data on patients
transported to Alternate Destination sites (Urgent Care Clinics) as part of the
Alternate Destination Pilot Project.
8. Report patient care, hospital outcomes, and billing data to the California
EMSA on behalf of the Fire Department, and in accordance with the Fire
Department's obligation to meet reporting requirements as a Community
Paramedicine Pilot Project site.
9. Report aggregate data on eligible patients from NBFD and other participating
fire departments, number of eligible patients, ambulance disposition, and
transport costs from pre-implementation/baseline period, to NBFD,
Huntington Beach Fire Department, Fountain Valley Fire Department and
Advisory Council. For this purpose, only aggregate data will be shared with
the other Fire Departments. No proprietary or individual patient data will be
disclosed as part of this report.
D. Relationship of Parties
1. Evaluator is an independent contractor and not an agent of City under this
Agreement. Evaluator has the sole right and obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed all of Evaluator's
obligations under this Agreement.
E. Indemnification
1. At Evaluator's expense, Evaluator agrees to indemnify, defend and hold
harmless City and City's employees, directors, officers, managers, or agents
(the "Indemnities") from and against any and all fines, penalties, damages,
losses, claims or causes of action and expenses (including, without limitation,
court costs and reasonable attorneys' fees) arising from any violation of the
HIPAA, the HIPAA Regulations, or the HITECH Act or from any negligence or
wrongful acts or omissions, including but not limited to failure to perform its
obligations that results in a violation of the HIPAA, the HIPAA Regulations, or
the HITECH Act, by Evaluator or its employees, directors, officers,
subcontractors, agents or other members of Evaluator's workforce.
Evaluator's obligation to indemnify the Indemnities shall survive the expiration
or termination of this Agreement for any reason.
SHIRA A. SCHLESINGER, MD, MPH, PC Page 5
F. Term and Termination
1. The term of this Agreement shall be effective as of the Effective Date and
shall terminate as of the date that all of the PHI provided by City to Evaluator,
or created or received by Evaluator on behalf of City, is destroyed or returned
to City, or, if it is infeasible to return or destroy the PHI, protections are
extended to such information, in accordance with Section (F)(3) below.
2. Upon City's knowledge of a material breach or violation of this Agreement by
Evaluator, City shall either:
a. Notify Evaluator of the breach in writing, and provide an opportunity for
Evaluator to cure the breach or end the violation within ten (10)
business days of such notification; provided that if Evaluator fails to
cure the breach or end the violation within such time period to the
satisfaction of City, City shall have the right to immediately terminate
this Agreement and the underlying services agreement between City
and Evaluator upon written notice to Evaluator;
b. Upon written notice to Evaluator, immediately terminate this
Agreement and the underlying services agreement between City and
Evaluator if City determines that such breach cannot be cured; or
C. If City determines that neither termination nor cure is feasible, City
shall report the violation to the Secretary of the Department of Health
and Human Services.
3. Upon termination of this Agreement for any reason, Evaluator shall return to
the City or destroy all PHI received from the City, or created, maintained, or
received by Evaluator on behalf of the City that Evaluator still maintains in
any form. Evaluator shall retain no copies of the PHI. However, if Evaluator
determines that neither return nor destruction of PHI is feasible, Evaluator
shall notify City of the conditions that make return or destruction infeasible,
and may retain PHI provided that Evaluator: (a) continues to comply with the
provisions of this Agreement for as long as it retains PHI, and (b) further
limits uses and disclosures of such PHI to those purposes that make the
return or destruction of PHI infeasible.
G. Notices
1. All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, and conclusively shall be deemed
served when delivered personally, or on the third business day after the
deposit thereof in the United States mail, postage prepaid, first-class mail,
addressed as hereinafter provided. All notices, demands, requests or
approvals from Evaluator to City shall be addressed to City at:
SHIRA A. SCHLESINGER, MD, MPH, PC Page 6
Attn: Cathy Ord, EMS Manager
Fire Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
2. All notices, demands, requests or approvals from City to Evaluator shall be
addressed to Evaluator at:
SHIRA A. SCHLESINGER, MD, MPH, PC
3044 E. 51" Street
Long Beach, CA 90814
H. Amendment to Comply with Law
1. This Agreement shall be deemed amended to incorporate any mandatory
obligations of City or Evaluator under the HITECH Act and it's implementing
HIPAA Regulations. Additionally, City and Evaluator agree to take such
action as is necessary to amend this Agreement from time to time as
necessary for City to implement its obligations pursuant to the HIPAA, the
HIPAA Regulations, or the HITECH Act.
I. Applicable Law and Venue
1. This Agreement shall be governed by and construed in accordance with the
laws of the State of California (without regards to conflict of laws principles).
City and Evaluator agree that all actions or proceedings arising in connection
with this Agreement shall be tried and litigated exclusively in the State or
federal (if permitted by law and if a party elects to file an action in federal
court) courts located in Orange County, California.
J. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and the same
instrument.
[SIGNATURES ON NEXT PAGE]
SHIRA A. SCHLESINGER, MD, MPH, PC Page 7
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
OFFICE OFJHCITY ATTORNEY A California municipal corporation
Date: k S Date:_ APR29 2015
By: By:
_ �L
Aa o . Harp Omi hr Chief Scoflos er
City Attorney Fire Department
ATTEST: SHIRA A. SCHLESINGER, MD, MPH, PC,
a California So Proprietor
Date: �� ��N Date: / Zo/J�
By: By: ��i�i
Leilani I. B own ra c singer, MD, MPH, PC
City Clerk Sole Proprietor
_F R1
U n
9��FORN�P
SHIRA A. SCHLESINGER, MD, MPH, PC Page 8