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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Health

Date & Time
  • event Date

    Tuesday, April 23, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

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.

Faculty

Nathan A. Kottkamp
Partner
Williams Mullen

Mr. Kottkamp’s regularly handles intricate—and often urgent—matters, such as professional licensure complaints, regulatory deficiency findings, difficult patient/ethics issues, medical staff issues, and just about anything else that inevitably arises in the complex context of providing health care services. He provides experience-informed counsel to clients to reduce the risk or extent of problems in the first place, at both the state and federal levels. Mr. Kottkamp's clients are hospitals and health systems, academic medical centers, behavioral health care services providers, senior care providers and retirement communities, specialty physician practices, post-acute, and long-term care providers. He is a nationally recognized authority on the Health Insurance Portability and Accountability Act of 1996 (HIPAA). In addition to his other privacy and security experience, Mr. Kottkamp has earned the CIPP/US designation as a Certified Information Privacy Professional from the International Association of Privacy Professionals. He has been recognized as a "Leading Lawyer" for Cyber Law in Virginia by Legal 500 U.S. (2017-2018) and has been named to "Legal Elite," Health Law by Virginia Business (2009-2017, 2019-2022). Complementing his HIPAA experience, Mr. Kottkamp routinely addresses issues involving 42 CFR Part 2, with respect to substance use disorder records.

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Rick L. Hindmand
Counsel
Mcdonald Hopkins LLC

Mr. Hindman focuses his practice on healthcare regulatory, data privacy, cybersecurity, corporate, and transactional matters. He represents physicians and other healthcare providers and organizations in structuring group practices, joint ventures, medical device companies, as well as physician/hospital alignment strategies and involvement in accountable care organizations (ACOs). He also assits healthcare providers and businesses with potential compliance challenges, including compliance with the Stark physician self-referral law, federal and state anti-kickback laws, and corporate practice and fee-splitting restrictions.

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Description

Many covered entities and business associates consider indemnification critical. Business associates are directly liable under 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 provisions incorporate 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 these provisions.

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?