A Business Associate Agreement Dilemma: To Indemnify or Not to Indemnify – Ten Considerations

Michael Kline writes:

A party (Party) to a HIPAA Business Associate Agreement (BAA) or Subcontractor Agreement (SCA), whether a covered entity (CE), business associate (BA) or  subcontractor (SC), may struggle with the question as to whether to agree to, demand, request, submit to, negotiate or permit, an indemnification provision (Provision) respecting the counterparty (Counterparty) under a BAA or SCA.  On January 25, 2013, the U.S. Department of Health and Human Services  published “Sample Business Associate Agreement Provisions,” which were silent on the matter of indemnification.  Nonetheless, inclusion of Provisions is often a major question for Parties to BAAs and SCAs.

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