111-21 - Gallagher Benefit Services - ContractContract No. 111-21
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("Agreement") is entered into on October 1, 2021
(the "Effective Date"), by and between City of Port Orchard on behalf of the Group Health
and Welfare Plans of City of Port Orchard ("Covered Entity") and Gallagher Benefit Services,
Inc. ("Business Associate").
RECITALS:
WHEREAS, Covered Entity and Business Associate mutually desire to outline their
individual responsibilities with respect to the use and/or disclosure of Protected Health
Information ("PHI") as mandated by the Privacy Rule promulgated under the Administrative
Simplifications subtitle of the Health Insurance Portability and Accountability Act of 1996
("HIPAA") including all pertinent regulations issued by the U.S. Department of Health and
Human Services as outlined in 45 C.F.R. Parts 160, 162 and 164 ("HIPAA Privacy Rules
andlor Security Standards"); and
WHEREAS, Covered Entity and Business Associate understand and agree that the
HIPAA Privacy Rules and Security Standards requires the Covered Entity and Business
Associate enter into a Business Associate Agreement which shall govern the use and/or
disclosure of PHI and the security of PHI and ePHI.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. When used in this Agreement and capitalized, the following terms
have the following meanings:
(a) "Breach" shall have the same meaning as the term "Breach" in 45 C.F.R.
§ 164.402.
(b) "Electronic Protected Health Information" or "ePHI" shall mean
Protected Health Information transmitted by electronic media or maintained in
electronic media.
(c) "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).
(d) "Privacy Rule" shall mean the Standards for Privacy of Individual
Identifiable Health Information as set forth at 45 C.F.R. Parts 160 and 164 Subparts A
and E.
(e) "Protected Health Information" or "PHI" shall have the same meaning
as the term "protected health information" in 45 C.F.R. § 160.103, limited to the
information created or received by Business Associate from or on behalf of Covered
Entity,
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(f) "Required by Law" shall have the same meaning as the term "required
by law" in 45 C.F.R. § 164.103.
(g) "Secretary" shall mean the Secretary of the Department of Health and
Human Services or his or her designee.
(h) "Security Incident" shall mean any attempted or successful
unauthorized access, use, disclosure, modification or destruction of information or
systems operations in an electronic information system.
(i) "Security Rule" shall mean the Standards for Security of PHI, including
ePHI, as set forth at 45 C.F.R. Parts 160 and 164 Subparts A and C.
0) "Unsecured Protected Health Information" shall mean protected health
information that is not rendered unusable, unreadable, or indecipherable to unauthorized
persons through the use of a technology or methodology specified by the Secretary.
Terms used but not defined in this Agreement shall have the same meaning as those
terms in the HIPAA regulations.
2. Obligations and Activities of Business Associate Regarding PHI.
(a) Business Associate agrees to not use or further disclose PHI other than
as permitted or required by this Agreement or as Required by Law.
(b) Business Associate agrees to use appropriate safeguards to prevent use
or disclosure of the PHI other than as provided for by this Agreement.
(c) Business Associate agrees to ensure that any agents, including sub-
contractors (excluding entities that are merely conduits), to whom it provides PHI agree
to the same restrictions and conditions that apply to Business Associate with respect to
such information.
(d) Business Associate agrees to provide access, at the request of Covered
Entity, and in a reasonable time and manner designated by Covered Entity, to PHI in a
Designated Record Set that is not also in Covered Entity's possession, to Covered Entity
in order for Covered Entity to meet the requirements under 45 C.F.R. § 164.524.
(e) Business Associate agrees to make any amendment to PHI in a
Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R.
§ 164.526 in a reasonable time and manner designated by Covered Entity.
(f) Business Associate agrees to make internal practices books and records
relating to the use and disclosure of PHI available to the Secretary, in a reasonable time
and manner as designated by the Covered Entity or Secretary, for purposes of the
Secretary determining Covered Entity's compliance with the Privacy Rule. Business
Associate shall immediately notify Covered Entity upon receipt or notice of any request
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by the Secretary to conduct an investigation with respect to PHI received from the
Covered Entity.
(g) Business Associate agrees to document any disclosures of PHI that are
not excepted under 45 C.F.R. § 164.528(a)(1) as would be required for Covered Entity
to respond to a request by an Individual for an accounting of disclosures of PHI in
accordance with 45 C.F.R. § 164.528.
(h) Business Associate agrees to provide to Covered Entity or an Individual,
in a time and manner designated by Covered Entity, information collected in accordance
with paragraph (g) above, to permit Covered Entity to respond to a request by an
Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R.
§ 164.528.
(i) Business Associate agrees to use or disclose PHI pursuant to the request
of Covered Entity; provided, however, that Covered Entity shall not request Business
Associate to use or disclose PHI in any manner that would not be permissible under the
Privacy Rule if done by Covered Entity.
3. Permitted Uses and Disclosures of PHI by -Business Associate.
(a) Business Associate may use or disclose PHI to perform functions,
activities or services for, or on behalf of, Covered Entity provided that such use or
disclosure would not violate the Privacy Rule if done by Covered Entity.
(b) Business Associate may use PHI for the proper management and
administration of Business Associate and to carry out the legal responsibilities of
Business Associate.
(c) Business Associate may disclose PHI for the proper management and
administration of Business Associate and to carry out the legal responsibilities of
Business Associate if-
(i) such disclosure is Required by Law, or
(ii) Business Associate obtains reasonable assurances from the person to
whom the information is disclosed that such 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
agrees to notify Business Associate of any instances of which it is aware
that the confidentiality of the information has been breached.
(d) Business Associate shall limit the PHI to the extent practicable, to the
limited data set or if needed by the Business Associate, to the minimum necessary to
accomplish the intended purpose of such use, disclosure or request subject to exceptions
set forth in the Privacy Rule.
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(e) Business Associate may use PHI to provide Data Aggregation services
to Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
4. Obli ations of Covered Entity Re ardin PHI.
(a) Covered Entity shall provide Business Associate with the notice of
privacy practices that Covered Entity produces in accordance with 45 C.F.R. § 164.520,
as well as any changes to such notice.
(b) Covered Entity shall provide Business Associate with any changes in, or
revocation of, authorization by an Individual to use or disclose PHI, if such changes
affect Business Associate's permitted or required uses and disclosures.
(c) Covered Entity shall notify Business Associate of any restriction to the
use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R.
§ 164.522, if such restrictions affect Business Associate's permitted or required uses and
disclosures.
(d) Covered Entity shall require all of its employees, agents and
representatives to be appropriately informed of its legal obligations pursuant to this
Agreement and the Privacy Rule and Security Standards required by HIPAA and will
reasonably cooperate with Business Associate in the performance of the mutual
obligations under this Agreement.
5. Security of Protected Health Information.
(a) Business Associate has implemented policies and procedures to ensure
that its receipt, maintenance, or transmission of all PHI, either electronic or otherwise,
on behalf of Covered Entity complies with the applicable administrative, physical, and
technical safeguards required protecting the confidentiality, availability and integrity of
PHI as required by the HIPAA Privacy Rules and Security Standards.
(b) Business Associate agrees that it will ensure that agents or
subcontractors agree to implement the applicable administrative, physical, and technical
safeguards required to protect the confidentiality, availability and integrity of PHI as
required by HIPAA Privacy Rules and Security Standards.
(c) Business Associate agrees to report to Covered Entity any Security
Incident (as defined 45 C.F.R. Part 164.304) of which it becomes aware. Business
Associate agrees to report the Security Incident to the Covered Entity as soon as
reasonably practicable, but not later than 10 business days from the date the Business
Associate becomes aware of the incident.
(d) Business Associate agrees to establish procedures to mitigate, to the
extent possible, any harmful effect that is known to Business Associate of a use or
disclosure of PHI by Business Associate in violation of this Agreement.
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(e) Business Associate agrees to immediately notify Covered Entity upon
discovery of any Breach of Unsecured Protected Health Information (as defined in 45
C.F.R. §§ 164.402 and 164.410) and provide to Covered Entity, to the extent available
to Business Associate, all information required to permit Covered Entity to comply with
the requirements of 45 C.F.R. Part 164 Subpart D.
(f) Covered Entity agrees and understands that the Covered Entity is
independently responsible for the security of all PHI in its possession (electronic or
otherwise), including all PHI that it receives from outside sources including the
Business Associate.
6. Term and Termination
(a) Term. This Agreement shall be effective as of the Effective Date and
shall remain in effect until the Business Associate relationship with the Covered Entity
is terminated and all PHI is returned, destroyed or is otherwise protected as set forth in
Section 6(d).
(b) Termination for Cause by Covered Entity. Upon Covered Entity's
knowledge of a material breach by Business Associate, Covered Entity shall provide an
opportunity for Business Associate to cure the breach. If Business Associate does not
cure the breach within 30 days from the date that Covered Entity provides notice of such
breach to Business Associate, Covered Entity shall have the right to immediately
terminate this Agreement and the underlying services agreement between Covered
Entity and Business Associate.
(c) Termination by Business Associate. This Agreement maybe terminated
by Business Associate upon 30 days prior written notice to Covered Entity in the event
that Business Associate, acting in good faith, believes that the requirements of any law,
legislation, consent decree, judicial action, governmental regulation or agency opinion,
enacted, issued, or otherwise effective after the date of this Agreement and applicable
to PHI or to this Agreement, cannot be met by Business Associate in a commercially
reasonable manner and without significant additional expense.
(d) Effect of Termination. Upon termination of this Agreement for any
reason, at the request of Covered Entity, Business Associate shall return or destroy all
PHI received from Covered Entity, or created or received by Business Associate on
behalf of Covered Entity. Business Associate shall not retain any copies of the PHI
unless return or destruction is deemed infeasible. If the return or destruction of PHI is
infeasible, Business Associate shall extend the protections of this Agreement to such
PHI and limit further uses and disclosures of such PHI to those purposes that make the
return or destruction infeasible, for so long as Business Associate maintains such PHI.
For purposes of illustration only and not to limit the set of circumstances that could
potentially make return or destruction infeasible, it would be infeasible for Business
Associate to return or destroy certain PHI that is part of work product that must be
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retained for document retention/archival purposes, as well as PHI that is stored as
result of backup e-mail systems that store a -mails for emergency backup purposes.
7. Amendment.
The parties may agree to amend this Agreement from time to time in any other respect
that they deem appropriate. Th is Agreement shal l not be amended except by written instrument
executed by the parties.
8. Indemnification.
Business Associate shall indemnify and hold harmless Covered Entity from and against
any and all costs, expenses, claims, demands, causes of action, damages, attorneys' fees and
judgments that arise out of or that may be imposed upon, incurred by, or brought against
Covered Entity to the extent directly resulting from a breach of this Agreement or any violation
of the Privacy Rule or other applicable HIPAA regulations by Business Associate. The
indemnification obligations provided for in this Section will commence on the effective date of
this Agreement and will survive its termination.
Covered Entity shall indemnify and hold harmless Business Associate from and against
any and all costs, expenses, claims, demands, causes of action, damages, attorneys' fees and
judgments that arise out of or are imposed upon, incurred by, or brought against Business
Associate to the extent directly resulting from a breach of this Agreement or any violation of
the Privacy Rule or other applicable HIPAA regulations by Covered Entity. The
indemnification obligations provided for in this Section will commence on the effective date of
this Agreement and will survive its termination.
9. Severability.
The parties intend this Agreement to be enforced as written. However, (i) if any portion
or provision of this Agreement is to any extent declared illegal or unenforceable by a duly
authorized court having jurisdiction, then the remainder of this Agreement, or the application
of such portion or provision in circumstances other than those as to which it is so declared
illegal or unenforceable, will not be affected thereby, and each portion and provision of this
Agreement will be valid and enforceable to the fullest extent permitted by law; and (ii) if any
provision, or part thereof, is held to be unenforceable because of the duration of such provision,
the Covered Entity and the Business Associate agree that the court making such determination
will have the power to modify such provision, and such modified provision will then be
enforceable to the fullest extent permitted by law.
10. Notices.
All notices, requests, consents and other communications hereunder will be in writing,
will be addressed to the receiving party's address set forth below or to such other address as a
party may designate by notice hereunder, and will be either (i) delivered by hand, (ii) made
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facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered mail or certified
mail, return receipt requested, postage prepaid.
If to the Covered Entity:
If to the Business Associate:
City of Port Orchard
Robert Putaansuu
216 Prospect Street
Port Orchard, WA 98366
Gallagher Benefit Services, Inc.
Charlie Isaacs
906 West 2nd Ave
Suite 400
._Spokane, WA 99201
11. ReQulato_ry References.
A reference in this Agreement to a section in the Privacy Rule means the referenced
section or its successor, and for which compliance is required.
12. Headings and Captions.
The headings and captions of the various subdivisions of the Agreement are for
convenience of reference only and will in no way modify or affect the meaning or construction
of any of the terms or provisions hereof.
13. Entire Agreement,
This Agreement sets forth the entire understanding of the parties with respect to the
subject matter set forth herein and supersedes all prior agreements, arrangements and
communications, whether oral or written, pertaining to the subject matter hereof.
14. Binding Effect.
The provisions of this Agreement shall be binding upon and shall inure to the benefit of
both Parties and their respective successors and assigns.
15. No Waiver of Rights, Powers and Remedies.
No failure or delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, will operate as a waiver of any
such right, power or remedy of the party. No single or partial exercise of any right, power or
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remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, will preclude such party from any other or
further exercise thereof or the exercise of any other right, power or remedy hereunder. The
election of any remedy by a party hereto will not constitute a waiver of the right of such party
to pursue other available remedies. No notice to or demand on a party not expressly required
under this Agreement will entitle the party receiving such notice or demand to any other or
further notice or demand in similar or other circumstances or constitute a waiver of the right of
the party giving such notice or demand to any other or further action in any circumstances
without such notice or demand. The terms and provisions of this Agreement may be waived,
or consent for the departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or consent will be deemed
to be or will constitute a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent will be effective only in the
specific instance and for the purpose for which it was given, and will not constitute a continuing
waiver or consent.
16. Governine Law.
This Agreement will be governed by and construed in accordance with the laws of
the State of Illinois.
17. Interpretation.
It is the Parties' intent to comply strictly with all applicable laws, including without
limitation, HIPAA, state statutes, or regulations (collectively, the "Regulatory Laws"), in
connection with this Agreement. In the event there shall be a change in the Regulatory Laws,
or in the reasoned interpretation of any of the Regulatory Laws or the adoption of new federal
or state legislation, any of which are reasonably likely to materially and adversely affect the
manner in which either Party may perform or be compensated under this Agreement or which
shall make this Agreement unlawful, the Parties shall immediately enter into good faith
negotiations regarding a new arrangement or basis for compensation pursuant to this Agreement
that complies with the law, regulation or policy and that approximates as closely as possible the
economic position of the Parties prior to the change. In addition, the Parties hereto have
negotiated and prepared the terms of this Agreement in good faith with the intent that each and
every one of the terms, covenants and conditions herein be binding upon and inure to the benefit
of the respective Parties. To the extent this Agreement is in violation of applicable law, then
the Parties agree to negotiate in good faith to amend this Agreement, to the extent possible
consistent with its purposes, to conform to law.
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IN WITNESS WHEREOF, the parties have executed this Business Associate
Agreement as of the Effective Date.
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BUSINESS ASSOCIATE:
GALLAGHER BENEFIT SERVICES, INC.
By:
Name: Charlie Isaacs
Title: Area President
COVERED ENTITY:
CITY OF PORT ORCHARD
By:
Name: Robert Putaansuu
Title:Mayor
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