Structuring Indemnification Provisions in Business Associate Agreements

Allocating and Transferring Risk in Healthcare Contracting

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, February 25, 2016

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to healthcare counsel for determining whether and when to include indemnification provisions in business associate agreements (BAAs). The panel will offer best practices for negotiating indemnification provisions.

Description

When the HHS published its sample BAA provisions, it notably did not include indemnification provisions. However, many covered entities and business associates consider indemnification critical. Business associates are now directly liable under HIPAA, and covered entities view indemnification provisions as additional protection and business associates use them to allocate or mitigate their risk.

Not all BAAs include indemnification provisions, and those that do include such provisions vary. Before deciding whether to include or exclude and before drafting the language, healthcare counsel must weigh various considerations. For example, will such a provision adversely impact insurance coverage, effectively limit liability or unfairly shift costs? When designing indemnification provisions, counsel should consider whether state law will give rise to equitable indemnity without them, whether a unilateral provision will be interpreted as reciprocal, and whether the provision provides important controls if breach notification issues arise.

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

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Outline

  1. Whether and when to include indemnification provisions
  2. Considerations when determining whether to include indemnification provisions in a BAA
  3. Best practices for negotiating and structuring indemnification provisions

Benefits

The panel will review these and other key issues:

  • What factors should counsel consider when determining if an indemnification provision is appropriate for a BAA?
  • What approaches should counsel use to protect a client’s interests when negotiating an indemnification provision?
  • What best practices should counsel employ when structuring indemnification provisions in BAAs?

Faculty

Fisher, Matthew R.
Matthew R. Fisher

Mirick O'Connell

Mr. Fisher is the chair of the firm's Health Law Group and focuses his practice on health law and all areas of...  |  Read More

Rose, Rachel
Rachel V. Rose, JD, MBA

Rachel V. Rose – Attorney at Law, PLLC

Ms. Rose is an attorney in Houston, Texas, whose primary practice areas are health care, with a focus on HIPAA and...  |  Read More

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