Structuring Indemnification Provisions in Business Associate Agreements: Allocating Risk in Healthcare Contracting

Wednesday, June 2, 2021 | 1:00 PM - 2:30 PM

Speaking Engagement

Rick Hindmand will be a panelist on a live 90-minute CLE video webinar with interactive Q&A on June 2. He will present on "Structuring Indemnification Provisions in Business Associate Agreements: Allocating Risk in Healthcare Contracting."

Many covered entities and business associates consider indemnification critical. Business associates are directly liable under the Health Insurance Portability and Accountability Act (HIPAA), and covered entities view indemnification provisions as additional protection. Business associates, as well as covered entities, use them to allocate or mitigate their risk.

Not all BAAs contain indemnification provisions and, when included, these clauses vary and can generate heavy negotiation. Often, however, parties (particularly business associates) enter into BAAs without recognizing the significance and potential variations of indemnification terms.

Before deciding whether to include or exclude indemnification provisions and their scope, healthcare counsel should weigh various considerations. For example, will such a provision adversely impact insurance coverage, limit liability, or unfairly shift costs? When designing indemnification provisions, counsel should consider the consequences of state law, whether a court will interpret a unilateral provision as reciprocal, how the provisions interact with the terms of the underlying contract, and whether the provision incorporates appropriate controls if breach notification issues arise.

Listen as our authoritative panel of healthcare attorneys discusses whether and when to include indemnification provisions in BAAs, variations in the scope of indemnification, and the factors counsel should consider when making those determinations. The panel will offer alternatives and best practices for negotiating and structuring those provisions.

Over the past 24 months, the U.S. Department of Health and Human Services Office for Civil Rights has brought notable enforcement efforts against several non-profit covered entities and business associates, resulting in instances of six and seven-figure penalties against providers across the county for incidents involving breaches of protected health information.

A new amendment to New York state law, which would have required all healthcare providers to obtain separate consents from patients for treatment and payment is on hold until further guidance is released, according to the New York Department of Health.

On November 1, 2024, the Centers for Medicare & Medicaid Services issued the Medicare Physician Fee Schedule 2025 final rule, which establishes new advanced primary care management billing codes that will expand opportunities for physician practices, federally qualified health centers, rural health clinics and other health care providers to get paid for services provided by clinical staff under the direction of a physician, nurse practitioner or physician assistant beginning January 1, 2025.

Structuring Indemnification Provisions in Business Associate Agreements: Allocating Risk in Healthcare Contracting

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