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

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, December 4, 2019

Recorded event now available

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

Description

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 as well as 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.

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Outline

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

Benefits

The panel will review these and other high priority 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 drafting and negotiating an indemnification provision?
  • What are some best practices for counsel when structuring indemnification provisions in BAAs?

Faculty

Hindmand, Rick
Rick L. Hindmand
Counsel
McDonald Hopkins

Mr. Hindman focuses his practice on healthcare regulatory, data privacy, cybersecurity, corporate, and...  |  Read More

Kottkamp, Nathan
Nathan A. Kottkamp
Partner
Waller Lansden Dortch & Davis

Mr. Kottkamp concentrates in healthcare law, including Medicare, Medicaid, managed care, third-party...  |  Read More

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