HIE NETWORKS HEALTH INFORMATION NETWORKTERMS OF USE
RECITALS
HIE Networksseeks to reduce the cost and improve the quality andefficiency of health care provided by the User through the electronicmanagement and exchange of health information acquired or generated by the User inproviding, paying for, and reporting on patient care items and services.
HIE Networkshas developedand operates a Health Information Network (“HIN”)to facilitate the electronic transmission, limited storage, andsharing of clinical health information among participating providers of health care services,third-party payers for health care services, and other interested parties in theirrespective regions in a manner that complies with all applicable laws and regulations,including without limitation those protecting the privacy and security of healthinformation.
Participantdesires to utilize the HIN to share clinical information, as allowed by applicable law, for treatment purposes.
For good and valuable consideration, the receipt and sufficiency and adequacy of which are hereby acknowledged, the parties agree as follows:
1.DEFINITIONS.
1.1.Agreement.
The term “Agreement” shall mean this Terms of Use Agreement.
1.2.HIE NetworksServices.
The term “HIE NetworksServices” means software and technical services designed to enable a Participant to utilize the HIE Networks HIN.
1.4HIE Networks HIN.
The term “HIE Networks HIN” the electronic network developed, implemented and maintained by HIE Networks for the exchange of clinical data.
1.3.Associated Software.
The term “Associated Software” is defined inExhibit A.
1.4.Authorized Representative.
The term “Authorized Representative” shallmean an individual designated by a Participant to represent the Participant. The initial Authorized Representative for eachParticipant is identified on the signature page of the Registration Application.
1.5.Authorized User.
The term “Authorized User” shall mean individuals, i.e., natural persons, designated by a Participant to access and use theHIN on behalf of the Participant.
1.6.Business Associate Agreement.
The term “Business Associate Agreement” refers to the business associate agreement, in the form attached to the Registration Application as Exhibit A, to be executed by Participant and HIE Networks.
1.7.Effective Date.
The term “Effective Date” shall mean the date on which HIE Networks approves a Participant’s Registration Application thereby allowing Participant to participate in the HIN
1.8.HIPAA.
The term “HIPAA” shall mean the Health Insurance Portabilityand Accountability Act of 1996 and the regulations promulgated thereunder at 45 CFRParts 160, 162, and 164.
1.9.HITECH Act.
The term “HITECH Act” shall mean the Health Information Technology for Economic and Clinical Health Act of 2009 and the regulations promulgated thereunder from time to time.
1.10.Participant
The term “Participant” shall mean an organization or individual registeredwith HIE Networks and approved to exchange clinical data through the HIN.
1.11.party or parties
The term “party” or “parties” may individually or collectively refer to HIE Networks and Participant, as applicable.
1.12.Participant’s Required Hardware and Software.
The term “Participant’sRequired Hardware and Software” is defined in Exhibit A.
1.13.Protected Health Information (“PHI”).
The term Protected HealthInformation (“PHI”) shall have the meaning ascribed to it by 45 CFR 160.103, and shallinclude but not be limited to written or electronic information relating to the diagnosis,treatment, tests, prognosis, admission, discharge, transfer, prescription, claims, and/orother data or information implicitly or explicitly identifying a patient to whom items orservices are provided by a Participant, which information is provided, stored, oraccessed by a Participant in connection with the HIE NetworksHIN.
1.14.Registration Application.
The term “Registration Application” shall meanan agreement between the HIE Networks and a Participant pursuant to which HIE Networksregisters the Participant in accordance with, and the Participant agrees to comply with,the terms and conditions of this Terms of UseAgreement. Participant may elect to appoint an Agent to make certain decisions on behalf of Participant. If Participant elects to appoint an Agent, Participant shall complete an "Appointment of Agent" form. Such form is an agreement by the Participant and a third-party agent who the Participant has authorized to perform certain functions or make certain decisions on behalf of the Participant.
1.15.Treatment.
The term “Treatment” shall have the meaning ascribed to it by45 CFR 164.501, which currently defines the term as the provision, coordination, ormanagement of health care and related services by one or more health care providers,including the coordination or management of health care by a health care provider witha third party, consultation between health care providers relating to a patient, or thereferral of a patient for health care from one health care provider to another and/or as may be defined under other applicable Federal or State law.
2.REGISTRATION REQUIREMENTS.
2.1.Registration Required.
Only organizations and individuals registered with HIE Networks asParticipantsare permitted to access the HIE NetworksHIN and use HIE Networks Services.A Participant may be registered to use some or all of theHIE Networks Services, as approved pursuant to that Participant’s Registration Application and this Agreement.
2.2.Registration by Application.
In order for an organization or an individualto become a Participant, it must submit a completed Registration Application. By submitting a Registration Application the Participant is expressly indicating its agreement with and to be bound by this Agreement as then in effect, upon acceptance of the Registration Application by HIE Networks.
2.3.Participant Classification.
Each Participantshall register to participate in one of the following participantclassifications:
(a) Medical practice;
(b) Laboratory;
(c) Hospital;
(d) Pharmacy;or
(e) Such other classifications as may be created by HIE Networks.
2.4.Review of Registration Application and Agreement.
HIE Networks shall review eachRegistration Application, conduct any related evaluation activities, including but not limited to the licensure standing of any individual provider or entity, and approve ordisapprove each Participant in accordance with HIE Networks’ Policies andProcedures. Such approval shall be in HIE Networks’reasonable discretion. HIE Networks shall notbe required to approve any Participant, however approval will not be denied without good cause, as reasonably determined byHIE Networks. Any applications from providers or entities that are currently excluded from participation in any state of federal health care benefit program shall automatically be denied.
2.5.Acceptance of Registration Application and Agreement.
Upon HIE Networks’written acceptanceof a Participant, the Registration Application and thisAgreement shall become legally binding upon HIE Networks andthe Participantas of the effective date of the HIE Networks’ acceptance. Submission of the Registration Application by a Participant does not indicate acceptance by HIE Networks.The Participantshall not be permitted to access the HIE NetworksHINanduse HIE Networks Services until its Registration Application has been accepted.
3.TERM AND TERMINATION.
3.1Term.
The terms of theRegistration Application and thisAgreement shall be for a period of time as set forth in the Participant’s Registration Application (the “Term”).
3.2Participant’s Right to TerminatetheRegistration Application and this AgreementFor Cause.
Notwithstanding any other provisions of this Section 3 to the contrary, and except as otherwise provided in Section 13.2(c), Participant may immediately terminate the Registration Application and this Agreementin the event that Participant has provided written notice describing a material breach of the Registration Application or this Agreement byHIE Networksand HIE Networks fails to cure such breach to the reasonable satisfaction of the Participant within fifteen (15) daysof HIE Networks’ receipt of such notice,or immediately upon written notice in the event HIE Networks breaches its obligations under the Business Associate Agreement between the parties.
3.3HIE Networks’ Right to Terminate theRegistration Application and This Agreement For Cause.
(a)HIE Networks may immediately terminate the Registration Application and this Agreementin the event that HIE Networks has provided written notice describing a breach of the Registration Application and/or this Agreement byParticipant, including without limitation, Participant’s failure to timely pay funds when due,and Participant fails to cure such breach to the reasonable satisfaction of the HIE Networks within fifteen (15) days of Participant’s receipt of such notice.
(b)HIE Networks may also terminate this Agreement and the Registration Application in the event of any cause beyond the reasonable control of HIE Networks making it commercially impracticable and/or impossible to perform under this Agreement (a “Material Adverse Event”). In the case of such Material Adverse Event, HIE Networks agrees to provide written notice to the Participant describing the Material Adverse Event, and its effect on HIE Networks’ performance. Following such notice from HIE Networks, the parties agree to negotiate in good faith to revise, reform and/or restructure this Agreement, the Registration Application and/or the relationship among the parties in order to make the continued provision of services viable. If the parties are unable to agree, within thirty (30) days after actual knowledge is received by each party of a Material Adverse Event, on how to revise, reform and/or restructure this Agreement, the Registration Application and/or their relationship to be in full compliance with applicable law, this Agreement shall terminate immediately, and HIE Networks and Participant shall have no continuing financial or other obligations to each other except as otherwise provided in this Agreement, the Registration Application, the Business Associate Agreement, and the Agency Agreement.
3.4Regulatory Changes.
Should any federal or state statute, regulation, or rule, now existing or enacted or promulgated after the effective date of this Agreement and the Registration Application be enacted or interpreted by any court or governmental body or agency having jurisdiction over any party so as to: (a) cause this Agreement and/or the Registration Application to be unlawful; (b) materially and adversely affect the ability of any party to lawfully perform any provision of this Agreement and/or the Registration Application; or (c) materially and adversely affect the benefits anticipated by HIE Networks or Participant (a “Material Adverse Regulatory Event”), then and in such event HIE Networks or Participant may notify the other party of such change and the effect of the change. Thereafter, the parties agree to negotiate in good faith to revise, reform and/or restructure this Agreement, the Registration Application and/or the relationship among the parties in order to fully comply with applicable law. Any such revision, reformation, and/or restructuring shall preserve, to the fullest extent possible, the underlying economic and financial arrangements between the parties. If the parties are unable to agree, within thirty (30) days after actual knowledge is received by each party of a Material Adverse Regulatory Event, on how to revise, reform and/or restructure this Agreement, the Registration Application and/or their relationship to be in full compliance with applicable law, this Agreement shall terminate immediately, and HIE Networks and Participant shall have no continuing financial or other obligations to each other except as otherwise provided in this Agreement, the Registration Application, the Business Associate Agreement, and the Agency Agreement.
3.5Effect of Termination.
Upon any termination of this Agreement, Participant shall immediately lose anyand all rights to use the HIE NetworksHINand/or HIE Networks Services. Provisions of thisAgreement identified in Section 3.6(Survival Provisions) which survive termination under the terms thereof shall continue toapply to HIE Networks and/orthe former Participant and its Authorized Users following termination. Followingtermination of this Agreement all Data stored byParticipant on the HIE NetworksHINshall be maintained exclusively for the administrative and technical purposes of the HIE Networks HIN; provided, however, that the parties acknowledge and agree that any such Data that is maintained shall remain the exclusive property of the former Participant; provided, further, that HIE Networks agrees to maintain all such Data in accordance with applicable federal and state laws.
3.6Survival Provisions.
The following provisions of this Agreement shallsurvive any termination of thisAgreement: Sections 3.5, 5, 7, 8, 9, 12, 13 & 15. In addition, the obligations contained in Section 14 forretention of insurance for a certain period of time following termination of thisAgreement shall survive as well.
4AUTHORIZED USERS.
4.1Identification of Authorized Users.
Participant shall provide HIE Networkswith a list, in a medium and format approved by HIE Networks, identifying all ofParticipant’s “Authorized Users,” together with the information and any items requiredregarding Authorized Users pursuant to the Participant’s Registration Application. Said list may be updated from time to time by the Participant by providing written notice to HIE Networks. This list shall enable HIE Networks to establish aunique identifier for each Authorized User. Participant shall notify HIE Networks, within 72 hours oftermination of employment or affiliation of an Authorized User of Participant and take steps within its systems and control to terminate the former Authorized User’s access to the HIE Networks HIN or HIE Networks Services. Following receipt of notice from the Participant, HIE Networks shall take actions required to terminate the individual’s access to the HIE Networks HIN and HIE Networks Services. Participant shall be solely liable for any acts or omissions related to its failure to properly terminate a former Authorized User’s access and/or failing to notify HIE Networks within the appropriate time frame; provided, however, that Participant shall not be liable for any damages directly or indirectly arising from or relating to acts or omissions by HIE Networks and/or any subcontractor thereofin terminating the individual’s access following proper notice by Participant hereunder.
4.2Passwords and Other Security Mechanisms.
Based on the informationprovided by Participant for its Authorized Users, HIE Networks shall issue a user identifierand other security measures required by HIE Networks from time to time, to eachAuthorized User. Upon issuance by HIE Networks of a user identifier and other securitymeasures to the Participant, the Authorized User shall be authorized to access theHIE NetworksHINand use HIE Networks Services consistent with the rights of Participant under its Registration Applicationand theAuthorized User’s role(s) for the Participant. If HIE Networks provides the user identifierand any other security measure(s) to the Participant for implementation withParticipant’s Authorized Users, the Participant shall be responsible for and oversee theimplementation and use of the user identifier and any other measures appropriate to theAuthorized User. Any violation by an Authorized User of this Agreementshall be cause forsuspension or termination of the Authorized User’s access to the HIE NetworksHINanduse of HIE Networks Services. Participant shall notify HIE Networks of the removal of anAuthorized User from its list of Authorized Users within 72 hours of such removal. Participant shall take such actions as are appropriate to terminate the individual’s access to the HIE NetworksHINand HIE Networks Services.Following receipt of notice from the Participant, HIE Networks shall take actions requiredto terminate theindividual’s access to the HIE NetworksHINand HIE Networks Services as described in greater detail in Section 4.1.
4.3No Use by Other than Authorized Users.
Participant agrees to restrictaccess to the HIE NetworksHINand, if applicable, use of HIE Networks Services, to only thoseAuthorized Users identified by Participant to HIE Networks in accordance with Section 4.1.
4.4Responsibility for Conduct of Participant and Authorized Users.
Participant shall be solely responsible for all acts and omissions of the Participant andjointly and severally liable for all acts and omissions of the Participant’s AuthorizedUsers and all other individuals who access the HIE NetworksHINand/or use HIE NetworksServices either through the Participant or by use of any password, identifier,mechanism, or log-on received or obtained from the Participant or any of theParticipant’s Authorized Users; provided, however, that in no event shall Participant be liable for damages directly or indirectly arising out of or resulting from the acts or omissions of HIE Networks and/or any of its subcontractors.
5PARTICIPANT DATA USE RIGHTS AND OBLIGATIONS.
5.1Data Ownership
The HIE Networks HIN and HIE Networks Services are composed of conveyance and aggregation software which does not alter or modify PHI or data that is transmitted or received via the HIE Networks HIN. Specifically, the HIE Networks HIN provides properly authorized Participants with access to unified electronic views of available patient data. The Parties explicitly agree that neither HIE Networks, nor any subcontractor thereof, has any ownership rights whatsoever to the data submitted by a Participant, residing in the HIE Networks HIN or other such data otherwise made available to HIE Networks by Participant as a result of the Parties relationship pursuant hereto, including, without limitation, any and all PHI, patient lists, audit logs or audit information, pharmacy, admissions, laboratory, diagnostic, treatment, business, financial, or other data or intellectual property of the Participant, regardless of whether such data is identifiable to a patient, patients, or Participant, or whether such data is a compilation, derivative, aggregation, or extrapolation in whole or in part from or of any of the aforesaid data (collectively, the “Data”). All Data submitted by each Participant or in any repository maintained on behalf of such Participant is the Data of the Participant that provided such Data. Neither HIE Networks, nor any subcontractor thereof, shall have any right to use the Data, except as provided herein, without the express written approval of the Participant that provided such Data. Excepting the foregoing, HIE Networks may collect and use technical information for the limited purposes of improving HIE Networks’ products or to provide Participant with customized services or technologies. Any new or additional Data produced by the HIE Networks HIN software is the exclusive property of the Participant that submitted the initial Data. The parties explicitly acknowledge and agree that this Section 5.1 is of the essence of the Agreement between the parties, and any breach by HIE Networks, or any subcontractor thereof, of the terms hereof shall be deemed a material breach of this Agreement. This Section 5.1 shall survive the termination of this Agreement and shall remain in full force and effect thereafter.
5.2Grant of Rights.
HIE Networks grants to each Participanta non-exclusive, nontransferable, limited right to access and use, and allow itsAuthorized Users to access and use, the HIE NetworksHINand HIE Networks Servicesconsistent with the Participant’sRegistration Application and subject to the Participant’s full compliance with this Agreement.HIE Networks retains all other rights to theHIE NetworksHINand all components thereof. No Participant shall obtain any rightsto the HIE NetworksHINexcept for the limited rights to use the HIE NetworksHINrequested by the Participant in its Registration Application and as expressly granted by this Agreement.