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HomeMy WebLinkAbout2016-121 Aging - UNC at Chapel Hill for physical therapy assessments IN ' lb/&-M —Please return this copy to the Clerk to the Board's — office for permanent agenda file. 111 INDEPENDENT CONTRACTOR AGREEMENT This INDEPENDENT CONTRACTOR AGREEMENT ("Contract") is made May 1, 2014, between Orange County, Department on Aging, and The University of North Carolina at Chapel Hill ("Contractor 11) , for clinical services to be rendered by Carol Giuliani, PT, PhD, Karen McCulloch, PT, MS, Charron Andrews, PT, and Vicki Mercer, PT, PhD, employees of Contractor and students under their direct supervision. RECITALS A. Orange County operates two Senior Centers in Orange County, NC: Robert and Pearl Seymour Center at 2551 Homestead Road, Chapel Hill, NC 27516; Central Orange Senior Center at 515 Meadowlands Drive, Hillsborough, NC 27278 and Orange County desires to have the following services provided at these senior centers at the same addresses: wellness screening, including physical assessment of balance, strength flexibility, and endurance, and activity recommendations for clients. B. Orange County desires to retain Contractor for clinical services to be rendered by Carol Giuliani, PT, PhD, Karen McCulloch, PT, MS, Vicki Mercer, PT, PhD; and Charron Andrews, PT, and students under their direct supervision to perform such services for Orange County under the terms and conditions set forth in the Contract. Students may be on-site under a separate executed affiliation agreement or as a volunteer. In no event shall students be paid for services rendered pursuant to this Agreement. In consideration of the mutual promises set forth in the Contract, it is agreed by and between Orange County and Contractor: SECTION ONE DESCRIPTION OF SERVICES The services to be performed by Contractor include wellness screening services generally performed by physical therapists including but not limited to physical assessment of balance, strength flexibility, and endurance, and activity recommendations for center clients. Contractor will provide on-site supervision by faculty of students who are not licensed professionals. Contractor will provide a series of scheduled screening sessions (a minimum of four hours per month and no more than 8 hours per day per site) . Contractor may also provide other evaluation and intervention services for which Contractor will bill to clients or insurances as UNC P&A University Physical Therapy. SECTION TWO PAYMENT Orange County will pay Contractor $30/hour for wellness screening services. Contractor will provide billings reports to the Orange County Wellness Coordinator for all client screening service during teach session date. Contractor will submit a bill at 90 day intervals for screening services rendered, payable within 30 days of receipt. Orange County will provide payment to the University within 30 days of receipt of contractor bill. SECTION THREE OBLIGATIONS OF CONTRACTOR Contractor will: a. Perform the services under the Contract in strict adherence to the professional standard of care, as well as the applicable professional code of ethics. b. Promptly communicate by telephone to the Orange County, Department on Aging Wellness Coordinator, interruptions, or problems with scheduling. c. Make every effort to help clients/participants understand the relationship between the Contractor and the Orange County, Department on Aging in providing wellness screening. d. Maintain all requisite record keeping and documentation at the Orange County, Department on Aging, in accordance with the requirements of Health Insurance Portability and Accountability Act of 1996 ("HIPPA") and any amendments thereto. Contractor records will fully disclose the extent of the services and recommendations provided to each participant. e. Keep confidential any information about client/participants which is shared by Orange County or the client/participant. Such information shall be shared only among Orange County and Contractor staff who need to know in order to coordinate, manage, or deliver services to the client. f. Conduct a thorough screening assessment and create recommendations for each client using the assessment tools provided by or approved by Orange County, and to provide to Orange County copies of assessments once completed. g. Provide to each client a copy of their screening assessment and any other documentation as necessary to ensure they are informed about recommendations for physical health improvement. h. Provide billings reports to the Orange County Wellness Coordinator for all client service during a session date. i. Submit a bill at 90 day intervals for services rendered, payable within 30 days of receipt. j . Meet with Orange County staff at their request to discuss service provision. SECTION FOUR OBLIGATIONS OF ORANGE COUNTY Orange County will provide, at Orange County's sole expense, appropriate administrative support to Contractor, including, but not limited to: staff assistance as needed, materials and supplies for participants, and appointment scheduling. Orange County will provide Contractor adequate space/areas for screening services. Orange County will maintain all records related to screening provided by contractor for three years from the first date of service and in accordance with the requirements of Health Insurance Portability and Accountability Act of 1996 ("HIPPA") and any amendments thereto, and make records available to contractor for inspection. Orange County shall use its best efforts to provide the support and services described in this Section Four. Orange County will comply with, and ensure its employees V?ill comply with, all applicable federal and state laws and codes of ethics, including but not limited to HIPPA and other privacy or confidentiality laws or codes. SECTION FIVE RELATIONSHIP OF PARTIES The parties agree that Contractor is an independent contractor, and nothing in the Contract creates an employer-employee or a principal-agent relationship, partnership or joint venture between Orange County and Contractor. The Contract also does not create any such relationship between Orange County's employees and Contractor. The conduct and control of Contractor's services performed under the Contract will lie solely with Contractor. On-site students are not and shall not be deemed to be employees or agents of Contractor. Orange County will provide Contractor a form 1099 at year end to be submitted to the Federal and State taxing authorities for any fees paid to Contractor by Owner. No Federal, FUTA, Social Security, State of North Carolina or North Carolina Unemployment Tax will be withheld nor deposited on Contractor's behalf. Contractor is urged to consult an accountant for guidance in establishing tax payment schedules which are appropriate for Contractor's situation. Contractor is associated with Owner only on a sub-contractual basis. SECTION SIX LIABILITY AND INDEMNIFICATION The services to be performed under the Contract will be performed at Contractor's risk, and Contractor assumes all responsibility for practicing according to the laws of the state of North Carolina and the applicable Codes of Ethics for professional conduct. Contractor will carry, for the term of the Contract, professional self-liability insurance in an amount acceptable to Orange County: minimum coverage of $1,000,000 per occurrence/$3,000,000 aggregate. Owner agrees to maintain adequate general business liability and hazard insurance for the center, including adequate premise liability insurance during the term of the Contract. To the extent permitted by and in accordance with the North Carolina tort Claims Act, Contractor will indemnify Orange County for any liability or loss arising from the negligent actions or omissions of Contractor in Contractor's performance of the Contract. Orange County will be solely responsible for Orange County's acts and omissions and those of its employees, representatives and agents, including but not limited to any and all wrongful acts and negligence of its employees, representatives and agents. Orange County will indemnify and hold harmless Contractor with respect to any and all losses, costs, damages or other liabilities, including without limitation reasonable attorneys' fees, arising from the actions or omissions of Orange County and/or its employees, representatives and agents. The indemnification in this Section Six shall survive the termination of the Contract. Initial here: (*'Add to the end of the sentence: "to the extent required by North Carolina law.") SECTION SEVEN TERM AND TERMINATION Unless sooner terminated, the Contract shall remain in force for a term of one (1) year from the date first above written. The Contract may be negotiated and renewed by written agreement of the parties annually. The Contract may be terminated as follows: a. By mutual written consent of the parties b. By either party upon sixty days' prior written notice to the other; c. By either party upon the other party's material breach of any obligations under the Contract, and the breach is not cured within a reasonable time; d. By contractor upon dissolution, bankruptcy, sale of substantially all of the assets, or a change of managing control of Orange County, or if Orange County ceases to engage in the business of providing senior center services; or e. By Contractor if the practice is no longer located at the address set forth in the Recital A above. Upon termination of the Contract, Orange County will provide Contractor a full accounting of and settle all accounts with Contractor. All clinical records (including but not limited to paper charts and copies of any clinical electronic files related to Contractors clients and practice) shall remain the property of Contractor. However, accounting records and copies of all electronic files will remain the property of Orange County, as is required for appropriate facility operation, handling of records requests, tax preparation, processing of insurance claims, and participation in facility provider network audits. SECTION EIGHT MISCELLANEOUS The Contract constitutes the entire agreement between Orange County and Contractor with respect to the subject matter in the Contract and supersedes all prior discussions, communications, understandings, and agreements, whether oral or written. The Contract may not be amended, nor modified except in writing duly executed by both Orange County and Contractor. Neither Orange County nor Contractor may assign, in whole or in part, the Contract or any of their respective rights or obligations under the Contract, without the prior written consent of the other party. The Contract may be executed in several counterparts, each of which will be deemed an original, and all of which will constitute one and the same instrument. The parties agree that the laws of the State of North Carolina will govern and control the validity, interpretation, performance, and enforcement of the Contract. In witness whereof, the parties have executed the Contract, under seal and in such form as to be binding the day and year first above written. FOR AND ON BEHALF OF ORANGE FOR AND ON BEHALF OF THE COUNTY, DEPARTMENT OF AGING UNIVERSITY OF NORTH CAROLINA AT C PEL HILL ! A Ung for V Printed N e: William Ape , M.D. , Dean, Title: d School 4f Medicine and Vice Date: Chancellor for Medical Affairs, _ C-Chapel Hill Date: Stephen R. Hooper, PhD Chair, Department of Allied Health Sciences, UNC-Chapel Hill Date: 5/12/15 Lisa Johnston, DPT Interim Director, Division of Physical Therapy, Dept. of Allied Health Sciences, UNC-Chapel Hill Date 5/1 /15 Mathe A. Mauro, MD, FACR, FSIR, FAHA CEO, UNC Facul ys ans Date: 0 BUSINESS ASSOCIATE AGREEMENT This Business Associate Agreement("Agreement")is made effective the 0 day of May,2014,by and between Orange County Government through its Orange County Department on Aging ("Covered Entity"), and The University of North Carolina at Chapel Hill, ("Business Associate"). Covered Entity and Business Associate may be referred herein individually as a "Party" or collectively as the "Parties". This Agreement supersedes any previously executed Business Associate Agreement between the Parties. WITNESSETH: WHEREAS, Sections 261 through 264 of the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Public Law 104-191, as modified by the Health Information Technology for Economic and Clinical Health Act ("HITECH"), Public Law 111-5, known as "the Administrative Simplification provisions," direct the Department of Health and Human Services to develop standards to protect the security, confidentiality and integrity of health information; and WHEREAS, pursuant to the Administrative Simplification provisions, the Secretary of Health and Human Services ("Secretary") has issued regulations modifying the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Parts 160 and 164, as the same may be amended from time to time(the"HIPAA Security and Privacy Rule"); and WHEREAS, the Parties wish to enter into or have entered into an arrangement whereby Business Associate will provide certain services to Covered Entity, and, pursuant to such arrangements, Business Associate may be considered a"Business Associate"of Covered Entity as defined in the HIPAA Security and Privacy Rule (the agreement evidencing such arrangement is detailed below and hereinafter referred to as the"Service Agreement(s)"); and WHEREAS, Business Associate may have access to Protected Health Information (as defined below) in fulfilling its responsibilities under such arrangement; THEREFORE, in consideration of the Parties' continuing obligations under the Service Agreement, compliance with the HIPAA Security and Privacy Rule, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the provisions of this Agreement in order to address the requirements of the HIPAA Security and Privacy Rule and to protect the interests of both Parties. 1. DEFINITIONS (a) Service Agreement. Agreement(s) for services affected by this HIPAA Business Associate Agreement, which this Business Associate Agreement shall be attached to, and is (are) hereby incorporated by reference,and which shall be taken and considered as a part of this document the same as if fully set out herein: Independent Contractor Agreement: OCDOA Clinical Services(Physical Therapy)-Carol Guiliani,PT,PhD Independent Contractor Agreement: OCDOA Clinical Services(Occupational Therapy)- Jennifer Womack,MS,OTR/L Independent Contractor Agreement: OCDOA Clinical Services(Dementia Outreach)-Jennifer Womack,MS, OTR/L (b) Catch-all Provision. Except as otherwise defined herein, any and all capitalized terms in this Agreement shall have the definitions set forth in the HIPAA Security and Privacy Rule,45 CFR Parts 160 and 164, subparts A and E. In the event of an inconsistency between the provisions of this Agreement and mandatory provisions of the HIPAA Security and Privacy Rule, as amended,the HIPAA Security and 1 October 2013 Privacy Rule shall control. Where provisions of this Agreement are different than those mandated in the HIPAA Security and Privacy Rule, but are nonetheless permitted by the HIPAA Security and Privacy Rule,the provisions of this Agreement shall control. (c) Electronic Protected Health Information. Protected Health Information that is transmitted by or maintained in Electronic Media(as defined in the HIPAA Security and Privacy Rule). (d) Protected Health Information. "Protected Health Information" shall have the same meaning as the term in 45 CFR § 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity and includes without limitation "Electronic Protected Health Information." Business Associate acknowledges and agrees that all Protected Health Information that is created or received by Covered Entity and disclosed or made available in any form, including paper record, oral communication, audio recording, and electronic display by Covered Entity or its operating units to Business Associate or is created or received by Business Associate on Covered Entity's behalf shall be subject to this Agreement. (e) Required by Law. "Required by Law" shall have the same meaning as the term in 45 CFR§ 164.103. II. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE (a) Use and Disclosure. Business Associate agrees to fully comply with the requirements under the HIPPA Security and Privacy Rule applicable to Business Associates and not to use or disclose Protected Health Information other than as permitted or required by this Agreement, the Service Agreement or as Required by Law. To the extent Business Associate carries out obligations of Covered Entity under the HIPAA Security and Privacy Rule, Business Associate shall comply with the applicable provisions of the HIPAA Security and Privacy Rule as if such use or disclosure were made by Covered Entity. Business Associate agrees to comply with Covered Entity's policies regarding the minimum necessary use or disclosure of Protected Health Information. (b) Appropriate Safeguards. Business Associate agrees to use appropriate safeguards to prevent use or disclosure of Protected Health Information other than as provided for by this Service Agreement(s), this Agreement or as Required by Law. This includes the implementation physical, technical and administrative safeguards to prevent use or disclosure of Protected Health Information other than as permitted in this Agreement or Required by Law and reasonably and appropriately protect the confidentiality, integrity, and availability of any Electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of Covered Entity as required by the HIPAA Security and Privacy Rule. The Business Associate shall maintain appropriate documentation of its compliance with the HIPPA Security and Privacy Rule, including, but not limited to, its policies, procedures, records of training and sanctions of members in its workforce. I (c) Assurances. Business Associate agrees to provide Covered Entity with written assurances that any Protected Health Information placed on any type of mobile media, including, but by no means limited to, lap top computers, Ipads and mobile phones, is encrypted in accordance with guidance issued by the Secretary. (d) Agents and Subcontractors. Business Associate shall require any agents, including any subcontractors, to whom it provides Protected Health Information from Covered Entity that is created, received, maintained or transmitted on behalf of Business Associate to agree by written contract with Business Associate to the same (or greater) restrictions, conditions and requirements that apply to Business Associate with respect to such information, and to agree to implement reasonable and appropriate safeguards to protect any of such information that is Electronic Protected Health Information. 2 October 2013 In addition, Business Associate agrees to take reasonable steps to ensure that its employees' actions or omissions do not cause Business Associate to breach the terms of this Agreement. (e) Mitigation of Breach. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement, as well as to provide complete cooperation to Covered Entity should Covered Entity elect to review or investigate such noncompliance or Security Incident. Business Associate shall cooperate in Covered Entity's breach analysis and/or risk assessment, if requested. Furthermore, Business Associate shall cooperate with Covered Entity in the event that Covered Entity determines that any third parties must be notified of a Breach, provided that Business Associate shall not provide any such notification except at the direction of Covered Enti ty. (f) Breach Reporting. Business Associate shall report in writing to Covered Entity's Privacy Officer(see Exhibit A), any use or disclosure of Protected Health Information that is not in compliance with the terms of this Agreement, as well as any Security Incident and any actual or suspected Breach, of which it becomes aware, without unreasonable delay, and in no event later than forty-eight(48) hours of such discovery. For purposes of this Agreement, "Security Incident" means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system. Such notification shall contain the elements required by 45 C.F.R. § 164.410. (g) Compliance. To the extent applicable, Business Associate will comply with (i) Covered Entity's Notice of Privacy Practices; (ii) any limitations to which Covered Entity has agreed in regard to an Individual's permission to use or disclose his or her Protected Health Information; and (iii) any restrictions to the use or disclosure of Protected Health Information to which Covered Entity has agreed or is required to agree. (h) Government Access. Business Associate will make its internal practices, books and records available to the Secretary of the Department of Health and Human Services for purposes of determining compliance with the terms of the HIPAA Security and Privacy Rule, and, at the request of the Secretary, will comply with any investigations and compliance reviews, permit access to information, and cooperate with any complaints, as Required by Law. Without unreasonable delay and, in any event, no more than 48 hours of receipt of the request or notification, Business Associate will notify Covered Entity in writing of any request by any governmental entity, or its designee, to review Business assessment of any kind. (i) Electronic Transactions. If Business Associate conducts any Standard Transactions for or on behalf of Covered Entity, Business Associate shall comply with the requirements under the Electronic Transaction Rule. 0) Audit. Business Associate shall permit Covered Entity, in its discretion, to conduct an audit of Business Associate's compliance with this Agreement, HIPAA, and HITECH. Such audit may consist of an onsite visit, a series of inquiries that require written responses, or both. Business Associate shall promptly and completely respond to Covered Entity's requests for information in support of the audit, which shall not be conducted more than once annually except in cases of an actual or reasonably suspected Security Incident or reasonably suspected noncompliance with this Agreement, HIPAA or HITECH. Each Party shall bear its own costs associated with the audit. (k) Identity Theft. Business Associate shall implement Identity Theft Monitoring Policies and Procedures to protect any patient information that may be breached by the Business Associate to the extent applicable under the Federal Trade Commission's Red Flag Rules. (1) HITECH Compliance. Business Associate shall: 3 October 2013 A. Not receive, directly or indirectly, any impermissible remuneration in exchange for Protected Health Information or Electronic Protected Health Information, except as permitted by HITECH§ 13405(d)or the HIPPA Regulations; B. Comply with the marketing and other restrictions applicable to Business Associates contained in HITECH § 13406 and the HIPPA Regulations; C. To the extent required under HITECH § 13404, fully comply with the applicable requirements of 45 CFR 164.502(e)(2) for each use and disclosure of Protected Health Information; D. To the extent required under HITECH § 13401, fully comply with 45 CFR §§ 164.308, 164.310, 164.312,and 164.316; E. To the extent required under HITECH §§13401 and 13404, comply with the additional privacy and security requirements that apply to Covered Entities in the same manner and to the same extent as Covered Entity is required to do so; and F. To the extent required under the HIPPA Regulations, comply with the privacy and security requirements that apply to Business Associates. (m) State Privacy Laws. Business Associate shall understand and comply with state privacy laws to the extent that such privacy laws are not preempted by HIPPA or HITECH. III. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE (a) Use of Protected Health Information on Behalf of Covered Entity. Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities or services for, or on behalf of, Covered Entity described in the Service Agreement, provided that such use or disclosure would not violate the HIPPA Security and Privacy Rule if it were made by Covered Entity or would not violate the Covered Entities minimum necessary policies. (b) Other Uses of Protected Health Information. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information within its workforce for the proper management and administration of Business Associate not to include Marketing or Commercial Use and to carry out the legal responsibilities of Business Associate; and (c) Third Party Confidentiality. Except as otherwise limited in this Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided that if Business Associate discloses any Protected Health Information to a third party for such purpose, the Business Associate shall enter into a written agreement with such third party requiring the following: A. Disclosure only as Required by Law; or B. Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and will be used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality, integrity, and or availability of the Protected Health Information has been breached immediately upon becoming aware. 4 October 2013 (d) Business Associate may provide data aggregation services relating to the health care operations of Covered Entity pursuant to any agreements between the Parties evidencing their business relationship as permitted by 45 CFR§ 164.504(e)(2)(i)(B). (e) Other Uses Strictly Limited. Nothing in this Agreement shall permit the Business Associate to share Protected Health Information with Business Associate's affiliates or contractors except for the purposes of the Service Agreement(s) between the Covered Entity and Business Associate(s) identified in Section I(a)of this Agreement. (f) Covered Entity Authorization for Additional Uses. Any use of Protected Health Information by Business Associate, its affiliate or Contractor, other than those purposes of this Agreement, shall require express written authorization by the Covered Entity, and a Business Associate Agreement or amendment as necessary. Activities which are prohibited include, but are not limited to, Marketing, as defined by 45 CFR§ 164.503 or the sharing for Commercial Use or any purpose construed by Covered Entity as Marketing or Commercial Use, even if such sharing would be permitted by federal or state laws. (g) Business Associate may de-identify Protected Health Information only at the specific direction of and only for the use of Covered Entity. Business Associate may not sell Protected Health Information except at the direction of Covered Entity and in compliance with the requirements of the HIPAA Security and Privacy Rule. IV. AVAILABILITY OF PHI (a) Access to Protected Health Information. Business Associate agrees, in the event the Business Associate maintains protected health information in a Designated Record Set,to make available, within ten (10) days of a request by Covered Entity in a time and manner designated by Covered Entity, Protected Health Information in a Designated Record Set, to Covered Entity or as directed by Covered Entity, to an individual in order to meet the requirements of 45 CFR § 164.524 of the HIPAA Security and Privacy Rule. (b) Amendments to Protected Health Information. In the event that the Business Associate maintains Protected Health Information in a Designated Record Set, Business Associate agrees to make any amendment(s) to Protected Health Information in a designated record set that the Covered Entity directs or agrees to pursuant to the HIPAA Security and Privacy Rule at the request of Covered Entity of an individual,within ten(10)days of receipt of a request from Covered Entity and in the time and manner designated by Covered Entity. (c) Accounting of Disclosures. Business Associate agrees to maintain and make available the information required to provide an accounting of disclosures, as required by 45 CFR§ 164.528 of the HIPAA Security and Privacy Rule. Business Associate will comply with Covered Entity's policy regarding accounting of disclosures. (d) Document Disclosures. In the event an Individual makes a request under this Section of the Agreement directly to Business Associate, Business Associate will notify Covered Entity of such request within three (3) business days and shall cooperate with, and act only at the direction of Covered Entity in responding to such request. V. OBLIGATIONS OF COVERED ENTITY (a) Notice of Privacy Practices. Covered Entity shall provide Business Associate with the notice of privacy practice that Covered Entity produces in accordance with 45 CFR § 164.520, as well as any changes to that notice. 5 October 2013 (b) Notice of Changes in Individual's Access or Protected Health Information. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, is such changes affect Business Associate's permitted or required uses. (c) Notice of Restriction in Individual's Access to Protected Health Information. Covered Entity shall notify Business Associate of any restrictions to the use or disclosure of Protected Health Information that Covered Entity has agreed in accordance with 45 CFR § 164.522 to the extent that such restriction may affect Business Associate's use of Protected Health Information. VI. PERMISSABLE REQUESTS BY COVERED ENTITY Requests Permissible Under HIPAA. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy or Security Rule. VII. TERMINATION (a) Term. This Agreement shall be effective as of the date first set forth above and shall terminate upon the earlier of (i) the termination of all agreements between the parties, and (ii) the termination by Covered Entity for cause as provided herein. (b) Termination for Cause. Notwithstanding anything in this Agreement to the contrary, Covered Entity shall have the right to terminate this Agreement and the Service Agreement immediately if Covered Entity determines that Business Associate has or will violated any material term of this Agreement. 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 or end the violation. Covered Entity may terminate this Agreement if Business Associate does not cure the breach or end the violation within the time period specified by Covered Entity. If termination, cure or end of the violation is not feasible,Covered Entity may report the violation to the Secretary. (c) Obligation of Business Associate Upon Termination. At termination of this Agreement, the Service Agreement(or any similar documentation of the business relationship of the Parties), or upon request of Covered Entity,whichever occurs first,Business Associate, shall: A. if feasible, return(in a manner or process approved by the Covered Entity)or destroy all Protected Health Information, regardless of form, including but not limited to paper or electronic format, received from Covered Entity, or created, maintained or received by Business Associate on behalf of Covered Entity. Business Associate shall retain no copies of the Protected Health Information. This provision shall also apply to Protected Health Information and other confidential information in the possession of sub-contractors or agents of Business Associate. B. If such return or destruction is not feasible, Business Associate shall (i) retain only that Protected Health Information necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities; (ii) return or destroy the remaining Protected Health Information that the Business Associate still maintains in any form; (iii)extend the protections of this Agreement to the retained Protected Health Information; (iv) limit further uses and disclosures to those purposes that make the return or destruction of the Protected Health Information not feasible; and (v) return or destroy the retained Protected Health Information when it is no longer needed by Business Associate. 6 October 2013 (d) Survival. This paragraph shall survive the termination of this Agreement and shall apply to Protected Health Information created, maintained, or received by Business Associate and any of its subcontractors. VIII. MISCELLANEOUS (a) Indemnification. Business Associate agrees to indemnify, defend, and hold harmless Covered Entity, its officers, agents, contractors and agents,against, and in respect of, any and all claims, losses, expenses, costs, damages, obligations, penalties, and liabilities which Covered Entity may incur by reason of Business Associate's breach of or failure to perform any its obligations pursuant to this Agreement, including but not limited to any injury or damages arising from any noncompliance with this Agreement or any Security Incident attributable to the negligence of Business Associate, including failure to execute the terms of this Agreement. Further, Business Associate agrees to indemnify, defend, and hold harmless Covered Entity, its officers, employees, contractors and agents, against all costs and expenses, including but not limited to, reasonable legal expenses, which are incurred by or on behalf of Business Associate in connection with the defense of such claims. (b) Disclaimer. Covered Entity makes no warranty or representation that compliance by Business Associate with this Agreement, HIPAA, HITECH, or the HIPAA Regulations will be adequate or satisfactory for Business Associate's own purposes. Business Associate is solely responsible for all decisions made by Business Associate regarding the safeguarding of Protected Health Information. (c) Assistance in Litigation or Administrative Proceedings. Business Associate shall make itself, and any subcontractors, employees, affiliates or agents assisting Business Associate in the performance of its obligations under this Agreement, available to Covered Entity, at no cost to Covered Entity,to testify as witnesses, or otherwise, in the event of litigation or administrative proceedings being commenced against Covered Entity, its directors, officers or employees based upon a claimed violation of HIPAA, HITECH, the HIPAA Regulations, or other laws relating to security and privacy, except where Business Associate or its subcontractor,employee or agent is named adverse party. (d) Survival. The obligations of Business Associate under this Agreement shall survive the expiration, termination, or cancellation of this Agreement, the Service Agreement and/or the business relationship of the parties, and shall continue to bind Business Associate, its agents, employees, contractors, successors, and assigns as set forth herein. (e) Ownership of Information. Covered Entity holds all right, title, and interest in and to the Protected Health Information and Business Associate does not hold and will not acquire by virtue of this Agreement or by virtue of providing goods or services to Covered Entity, any right, title, or interest in or to the PHI or any portion thereof. (f) Right to Injunctive Relief. Business Associate expressly acknowledges and agrees that the breach, or threatened breach,by it of any provision of this Agreement may cause Covered Entity to be irreparably harmed and that Covered Entity may not have an adequate remedy at law. Therefore,Business Associate agrees that upon such breach, or threatened breach, Covered Entity will be entitled to seek injunctive relief to prevent Business Associate from commencing or continuing any action constituting such breach without having to post a bond or other security and without having to prove the inadequacy of any other available remedies. Nothing in this paragraph will be deemed to limit or abridge any other remedy available to Covered Entity at law or in equity. Except as expressly stated herein or in the HIPAA Security and Privacy Rule, the parties to this Agreement do not intend to create any rights in any third parties. (g) Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity to comply with the requirements of the 7 October 2013 HIPSS Regulations. In addition, this Agreement may be amended or modified by the Parties only in writing. (h) Assignment. No Party may assign its respective rights and obligations under this Agreement without the prior written consent of the other Party. (i) Independent Contractor. None of the provisions of this 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 solely for the purposes of effecting the provisions of this Agreement and any other agreements between the Parties evidencing their business relationship. This Agreement will be governed by the laws of the State of North Carolina. No change, waiver or discharge of any liability or obligation hereunder on any one or more occasions shall be deemed a waiver of performance of any continuing or other obligation, or shall prohibit enforcement of any obligation, on any other occasion. 0) Regulatory References. A reference in this Agreement to a section in HIPAA, HITECH or the HIPAA Regulations means the section as it currently is in effect or as amended. (k) Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the HIPAA Regulations. The parties agree that, in the event that any documentation of the arrangement pursuant to which Business Associate provides services to Covered Entity contains provisions relating to the use or disclosure of Protected Health Information that are more restrictive than the provisions of this Agreement, the more restrictive provisions will control. The provisions of this Agreement are intended to establish the minimum requirements regarding Business Associate's use and disclosure of Protected Health Information. (1) Severability. In the event any part or parts of this Agreement are held to be unenforceable, the remainder of this Agreement will continue in effect. In addition, in the event a party believes in good faith that any provision of this Agreement fails to comply with the then-current requirements of the HIPAA Security and Privacy Rule, such party shall notify the other party in writing. For a period of up to (30)thirty days, the parties shall address in good faith such concern and amend the terms of this Agreement, if necessary to bring it into compliance. If, after such thirty-day period, a party believes in good faith that the Agreement fails to comply with the HIPAA Security and Privacy Rule, then either party has the right to terminate upon written notice to the other party. (m) Notices and Communications. All instructions, notices, consents, demands, or other communications required or contemplated by this Agreement shall be in writing and shall be delivered to the Party at the address below: For Covered Entity: For Business Associate Orange County The University of NC at Chapel Hill Attn: Kathie Kearns Attn: ValerieTan 2551 Homestead Road Allied Health Sciences,CB 7120 Chapel Hill,NC 27516 Chapel Hill,NC 27599-7120 (n) Strict compliance. No failure by any Party to insist upon strict compliance with any terms or provisions of this Agreement,to exercise any option,to enforce any right, or to seek any remedy upon any default of any other Party shall affect, or constitute a waiver of, any Party's right to insist upon such strict compliance, exercise that option, enforce that right, or seek that remedy with respect to that default or any prior, or contemporaneous, or subsequent default. No custom or practice of the Parties at variance with any provisions of this Agreement shall affect, or constitute a waiver of, any Party's right to demand strict compliance with all provisions of this Agreement. (o) Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of North Carolina except to the extent that North Carolina laws have been pre-empted by 8 October 2013 HIPAA and without giving effect to principals of conflicts of law. Jurisdiction shall be Orange County, North Carolina, for purposes of litigation resulting from disagreements of the Parties for purposes of this Agreement and the Service Agreement(s). IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year written above. COVERED NT Y: BUSINESS ASSOCIATE: By: By: ,t Acting for Iliam Roper,MD,MPH Title: Title: can ScL hool of Medicine Vice Chancellor for Medical Affairs 9 October 2013 EXHIBIT A COVERED ENTITY PRIVACY OFFICER CONTACT INFORMATION To report to Covered Entity any use or disclosure of Protected Health Information not in compliance with the terms of this Agreement that might be considered a privacy breach,Business Associate should contact the Privacy Officer at the applicable entity. To report to Covered Entity any Security Incident(as defined in the Agreement),Business Associate should contact Kathie Kearns at Orange County Department on Aging,or the Security Officer at The Orange County Department on Aging. 10 October 2013