BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (the “Agreement”) is made and entered into by and between SNF Metrics LLC, a New Jersey Corporation with its principal office located at 1608 NJ-88 Brick, New Jersey 08724 (“SNF Metrics”) and the entity listed in the signature block below with the address as set forth on the order form (“Subscriber”). SNF Metrics and Subscriber are hereinafter referred to collectively a the “ Parties”

WHEREAS, Subscriber may be a “covered entity” or a “business associate” under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA”) and, as such, in furtherance of compliance with HIPAA, desires to enter into a written agreement with certain contractors that may create, receive, maintain or transmit Protected Health Information on behalf of Subscriber;

The business relationship between Business Associate and Covered Entity may involve the use and disclosure of health information that is protected by federal law as defined below (collectively “Protected Health Information” as more fully defined below). Therefore, to the extent that such Protected Health Information is shared between the parties, this Agreement shall apply and shall set forth the party’s obligations with respect to such Protected Health Information. The provisions of this Agreement shall become binding on the parties beginning on the date on which Protected Health Information is first shared between the parties and shall terminate in accordance with the terms of this Agreement.

1. Definitions

The term “Breach” shall mean the unauthorized acquisition, access, use, or disclosure of Protected Health Information which compromises the security or privacy of such Protected Health Information such that the unauthorized acquisition, access, use, or disclosure poses a significant risk of financial, reputational, or other harm to the Individual (as defined below). A “Breach” shall not include the following:
1. any unintentional acquisition, access, or use of Protected Health Information by an employee or person acting under the authority of Covered Entity or Business Associate, as long as such acquisition, access, or use was made in good faith and within the scope of such employee’s or person’s authority with Covered Entity or Business Associate, provided that such information is not further used or disclosed in an unauthorized manner;
2. an inadvertent disclosure by a person who is otherwise authorized to access Protected Health Information at Covered Entity or Business Associate to another similarly situated person at the same Covered Entity or Business Associate, provided that any such information received as a result of such disclosure is not further used or disclosed in an unauthorized manner; or

a disclosure of Protected Health Information where Covered Entity or Business Associate has a good faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able to retain such information.

Electronic Health Record. The term “Electronic Health Record” shall mean an electronic record of health-related information on an Individual that is created, gathered, managed, and consulted by authorized health care clinicians and staff.
Electronic Protected Health Information. The term “Electronic Protected Health Information” shall have the same meaning as the term “electronic protected health information” at 45 C.F.R. § 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
Health Plan. The term “Health Plan” or “Plan” shall have the same meaning as the term “Health Plan” at 45 C.F.R. § 160.103.
HIPAA. The term “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended, and the implementation regulations thereunder, including without limitation the HITECH Standards (as defined below), the January 25, 2013 final rule issued by the Secretary (the “Final Rule”), and all future regulations promulgated thereunder.
HIPAA Rules. The term “HIPAA Rules” means the Privacy Rule (as defined below) and the Security Rule (as defined below).
HITECH Standards. The term “HITECH Standards” means Subtitle D of the Health Information Technology for Economic and Clinical Health Act (“HITECH”), found at Title XIII of the American Recovery and Reinvestment Act of 2009, and any regulations promulgated thereunder, including all amendments to the HIPAA Rules, including the Final Rule.
The term “Individual” shall have the same meaning as the term “individual” at 45 C.F.R. § 160.103, and any amendments thereto, and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § 164.502(g).
Privacy Rule. The term “Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. Part 160 and 164.
Protected Health Information. The term “Protected Health Information” shall have the same meaning as the term “protected health information” at 45 F.R. § 160.103, and any amendments thereto, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
Required By Law. The term “Required By Law” shall have the same meaning as the term “required by law” at 45 C.F.R. § 164.103.
Secretary. The term “Secretary” shall mean the Secretary of the Department of Health and Human Services or his/her designee.
Security Incident. The term “Security Incident” shall have the same meaning as the term “security incident” at 45 C.F.R. § 164.304.
Security Rule. The term “Security Rule” shall mean the Security Standards for the Protection of Electronic Protected Health Information at 45 C.F.R. Parts 160, 162, and

Unsecured Protected Health Information. The term “Unsecured Protected Health Information” means Protected Health Information that is not rendered unusuable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified by the Secretary.
Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in the Privacy Rule, the Security Rule, the HITECH Standards,the Final Rule, or any future regulations promulgated or guidance issued by the Secretary thereunder.

2. Relationship of Parties

In the performance of the work, duties and obligations described in this Agreement or under any other agreement between the parties, the parties acknowledge and agree that each party is at all times acting and performing as an independent contractor and at no time shall the relationship between the parties be construed as a partnership, joint venture, employment, principal/agent relationship, or master/servant relationship.

3. Obligations and Activities of Business Associate

Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement, any underlying agreement between the parties, or as Required By Law.
Business Associate will make reasonable efforts to limit requests for and the use and disclosure of Protected Health Information to the minimum necessary, and as applicable, in accordance with the regulations and guidance issued by the Secretary on what constitutes the minimum necessary for Business Associate to perform its obligations to Covered Entity under this Agreement, any underlying agreement, or as Required By
Business Associate agrees to use appropriate safeguards to prevent the use or disclosure of Protected Health Information other than as provided for by this Agreement.
Business Associate agrees to implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Protected Health Information that it creates, receives, maintains or transmits on behalf of Covered Entity.
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.
Business Associate agrees to report to Covered Entity any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware. To the extent that Business Associate creates, receives, maintains or transmits Electronic Protected Health Information, Business Associate agrees to report as soon as practicable to Covered Entity any Security Incident, as determined by Business Associate, involving Protected Health Information of which Business Associate becomes aware. At the request of Covered Entity, Business Associate shall identify the date of the Security Incident, the scope of the Security Incident, Business Associate’s response to the

Security Incident and the identification of the party responsible for causing the Security Incident, if known. The parties agree that this section satisfies any reporting required by Business Associate of attempted but Unsuccessful Security Incidents (as defined below) for which the parties agree no additional reporting shall be required. The term “Unsuccessful Security Incidents” includes but is not limited to activity such as “pings” and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any other attempts to penetrate such computer networks or systems that do not result in unauthorized access, use or disclosure of Electronic Protected Health Information.

Following Business Associate’s discovery of a use or disclosure of Unsecured Protected Health Information that is not provided for by this Agreement, Business Associate shall promptly perform a risk assessment to determine whether the use or disclosure qualifies as a Breach. Following such risk assessment, Business Associate shall notify Covered Entity of the Breach without unreasonable delay, and in no event later than thirty (30) calendar days after Business Associate, or any of its employees or agents, discovered the Breach. Such notification shall include, to the extent possible, the identification of each Individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used, or disclosed during the Breach and any other information available to Business Associate about the Breach which is required to be included in the notification of the Breach provided to the Individual in accordance with 45 C.F.R. §164.404(c). Business Associate shall provide Covered Entity with such information in the form provided or requested by Covered Entity. Upon Covered Entity’s request, Business Associate shall also provide Covered Entity with documentation of the risk assessment performed to determine whether or the not the use or disclosure of Unsecured Protected Health Information qualified as a Breach under the HITECH A Breach of Unsecured Protected Health Information shall be treated as discovered as of the first day on which such Breach is known to Business Associate or should have be known to Business Associate by exercising reasonable diligence.
Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity, agrees to substantially the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such information by entering into a comparable business associate agreement.
Business Associate agrees to provide access, at the request of Covered Entity, and in a time and manner mutually acceptable to Business Associate and Covered Entity, to 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 under 45

C.F.R. § 164.524.

Business Associate agrees to make any amendment(s) to Protected Health Information in its possession contained in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 C.F.R. § 164.526 at the request of Covered Entity or an Individual, and in a time and manner mutually acceptable to Business Associate and Covered Entity.

Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. § 164.528.
Within ten (10) business days (or such other date that Business Associate and Covered Entity may reasonably agree upon) of receiving written notice from Covered Entity that Covered Entity has received a request for an accounting of disclosures of Protected Health Information, Business Associate agrees to provide to Covered Entity information collected to permit Covered Entity to make the accounting required in accordance with 45 C.F.R. § 164.528.
Business Associate agrees to honor any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information, upon written notice by Covered Entity to Business Associate. Specifically, upon written notice from Covered Entity that an Individual has made a request to restrict the disclosure of the Individual’s Protected Health Information, Business Associate must comply with the requested restriction if, except as otherwise required by law, the disclosure is to a Health Plan for purposes of carrying out payment or health care operations and the Protected Health Information pertains solely to a health care item or service for which the health care provider involved has been paid out of pocket in full.
Business Associate agrees to make its internal practices, books, and records, including policies and procedures, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity, available to the Secretary for purposes of determining Covered Entity’s compliance with the Privacy Rule.
If Business Associate uses or maintains Protected Health Information in an Electronic Health Record, Business Associate must provide access to such information in an electronic format if so requested by an Individual. Any fee that Business Associate may charge for such electronic copy shall not be greater than Business Associate’s labor costs in responding to the request.
Business Associate shall not engage in any marketing activities or communications with any Individual unless such marketing activities or communications are allowed by the terms of this Agreement or a separate underlying agreement between the parties, and are made in accordance with the HITECH Standards, the Final Rule, or any future regulations promulgated thereunder. Notwithstanding the foregoing, any payment for marketing activities shall be made in accordance with the HITECH Standards, the Final Rule,or any future regulations promulgated thereunder.
If Business Associate knows of, or becomes aware of, a pattern of activity or practice of Covered Entity that constitutes a material breach or violation of Covered Entity’s obligations under this Agreement, Business Associate shall take reasonable steps to cure the breach or end the violation, as applicable, and if such steps are unsuccessful shall

terminate this Agreement, if feasible, or, if termination is not feasible, report the problem to the Secretary.

Business Associate shall abide by the Security Standards for the Protection of Electronic Protected Health Information at 45 C.F.R. Subpart C, specifically the Administrative Safeguards at 45 C.F.R. § 164.308, the Physical Safeguards at 45 C.F.R. § 164.310, the Technical Safeguards at 45 C.F.R. § 164.312, and the policies and procedures and documentation requirements at 45 C.F.R. § 164.316, in the same manner such provisions apply to Covered Entity.
Business Associate shall not receive remuneration, directly or indirectly, in exchange for any Protected Health Information, unless so allowed by the terms of this Agreement or a separate underlying agreement between the parties and in accordance with the HITECH Standards, the Final Rule, and any future regulations promulgated thereunder.
Upon Covered Entity’s request, Business Associate shall provide a certification in writing to Covered Entity that Business Associate is in compliance with the terms of the Agreement and any other applicable HIPAA Rule or HITECH Standard.

4. General Use and Disclosure Provisions

Except as otherwise limited in this Agreement:

Business Associate reserves the right to use Protected Health Information for the proper management and administration of Business Associate, to carry out the legal responsibilities of Business Associate, and to provide data aggregation services to Covered Entity.
Business Associate may use or disclose Protected Health Information 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.
Business Associate may disclose Protected Health Information in its possession for the proper management and administration of Business Associate, provided that disclosures are Required by Law, or Business Associate obtains reasonable assurances from the third party to whom the information is disclosed that such Protected Health Information will be held confidentially and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the third party, and the third party notifies Business Associate of any instances of which it is aware in which the confidentiality of the Protected Health Information has been breached.

5. Obligations of Covered Entity

Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices in accordance with 45 C.F.R. § 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of Protected Health
Covered Entity shall notify Business Associate, in writing and in a timely manner, of any change in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such change may affect Business Associate’s permitted or

required use or disclosure of Protected Health Information.

Covered Entity shall notify Business Associate, in writing and in a timely manner, of any restriction to the use and/or disclosure of Protected Health Information, which Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health
Covered Entity shall notify Business Associate if it has entered into “Business Associate Agreements” with any third parties (e.g., case managers, brokers or third party administrators) to which Covered Entity directs and authorizes Business Associate to disclose Protected Health Information

6. Permissible Requests by Covered Entity

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 Rule or the Security Rule if done by Covered Entity.

7. Term and Termination

Term. The term of this Agreement shall commence on the Effective Date which shall be no later than the earliest applicable compliance date, and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is not feasible to return or destroy the Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.
Termination for Cause. Upon Covered Entity’s knowledge of a material breach by Business Associate, Covered Entity shall either:
1. Provide an opportunity for Business Associate to cure the breach of this BAA or end the violation and terminate this Agreement if Business Associate does not cure the breach or end the violation within the time specified by Covered Entity; or
2. Immediately terminate this Agreement if Business Associate has breached a material term of this Agreement and cure is not possible.
Judicial or Administrative Proceedin Covered Entity may terminate the Agreement, effective immediately, if Business Associate is named as a defendant in a criminal proceeding for a violation of the HIPAA Rules or other security or privacy laws or (ii) a finding or stipulation that the Business Associate has violated any standard or requirement of HIPAA Rules, or other security or privacy laws is made in any administrative or civil proceeding in which the Business Associate has been joined.
Effect of Termination.
1. Except as provided in paragraph (ii) of this Section, upon termination of this Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health

Information that is in the possession of subcontractors or agents of Business Associate. Business Associate shall not retain copies of the Protected Health Information.

In the event that Business Associate determines that returning or destroying the Protected Health Information is not feasible, or if Protected Health Information is retained by Business Associate for purposes described in Section 5 above, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction not feasible or necessary for purposes of Section 5 Upon determination that return or destruction of Protected Health Information is not feasible or necessary for purposes of Section 5 above, Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction not feasible, for so long as Business Associate maintains such Protected Health Information.

8. Limitation of Liability

Neither party will be liable to the other party for any incidental, consequential, special or punitive damages with respect to the matters addressed in this Agreement.

9. Miscellaneous

Regulatory References. A reference in this Agreement to a section in the Privacy Rule or the Security Rule means the section as in effect or as amended and for which compliance is required.
Amendment. The parties acknowledge that the foregoing provisions are designed to comply with the mandates of HIPAA. No change, amendment, or modification of this Agreement shall be valid unless set forth in writing and agreed to by both parties. Notwithstanding the foregoing, the parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to ensure compliance with such developments. The parties specifically agree to take such action as may be necessary from time to time for the parties to comply with the requirements of HIPAA.
Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity and Business Associate to comply with HIPAA.
No Third-Party Beneficiary. Except as otherwise explicitly stated herein, nothing in this Agreement is intended, nor shall it be construed, to create any right in any third party.
Severabilit In the event that any provision of this Agreement violates any applicable statute, regulation, ordinance or rule of law in any jurisdiction that governs this Agreement, such provision shall be ineffective to the extent of such violation without invalidating any other provision of this Agreement.
Superseding Ag This Agreement supersedes any previous business associate agreement between the parties.

Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which, taken together, deemed to be one and the same

BAA