WHEREAS, the American Academy of Pediatrics recommends and supports a strong partnership among school nurses, other school health personnel, and pediatricians; and,
WHEREAS, NEMOURS has compiled a secure electronic database consisting of clinical information (including progress notes, specialty consults, laboratory and imaging results), member demographics, insurance carrier information, other information regarding patients of NEMOURS; and,
WHEREAS, NEMOURS has the ability to provide school nurses and other school health personnel
secure electronic access to select portions of their students' medical records via a connection to the internet or telephone line through the Service, and NemoursLink Partner, through its Users, desires to obtain access to select portions of their students' medical records by using the Service; and,
WHEREAS, NEMOURS has an interest in improving the delivery and coordination of care to patients of NEMOURS by partnering with school nurses and other school health personnel by providing secure electronic access to select portions of their students' medical records.
NOW THEREFORE, in consideration of the promises and covenants contained in this Agreement, and for good and valuable consideration, NEMOURS and NemoursLink Partner agree as follows:
- Access to Service. Upon execution of this Agreement and any other required documents, and
approval of all access sites and Users as required herein, NEMOURS will grant the NemoursLInk Partner secure access to the Service and also provide limited training on the Service.
- Capitalized Words have, unless otherwise specified in this NemoursLink Partner Agreement, the meanings below.
- Authorized Agent or Representative means an individual who has the authority to legally obligate the NemoursLink Partner under this agreement.
- Confidential Patient Information means individually identifiable health information regarding NEMOURS patients stored in the Nemours' electronic database of patient information, including clinical information such as progress notes, specialty consults, laboratory and imaging results, and patient demographic and insurance information. This information is protected by various state and federal privacy laws and regulations, including but not limited to the Health Insurance Portability and Accountability Act of 1996, as amended, ("HIPAA"), and the Health Information Technology for Economic and Clinical Health Act ("HITECH"), which was enacted as part of the American Recovery and Reinvestment Act of 2009.
- Nemours' Data means Confidential Patient Information and Proprietary Information contained in a secure electronic database owned by NEMOURS.
- NemoursLink Partner means a School District.
- Non-Treatment Related Purposes refers to access of the Service for purposes unrelated to treatment.
- Proprietary Information refers to information relating to NEMOURS' internal business affairs, including information regarding NEMOURS products, pricing; personnel data; vendor information; financial data and other competitively sensitive information that NEMOURS maintains as confidential. If such information is already made available in the public domain, then such information is not Proprietary information. All Proprietary Information is confidential and may not be used for any purpose without the advance written consent of NEMOURS. Proprietary information includes the NemoursLink Manual, this Agreement and the User Agreement, and any NemoursLink forms or documents.
- Service means NemoursLink software that provides a secure method of communication, which enables a User to view and copy Confidential Patient Information concerning Students who have received health care services at a Nemours¿ facility. Users accessing the Service may also be exposed to Proprietary Information.
- Student means an individual enrolled as a student in the NemoursLink Partner School District.
- Technical Liaison means the department or individual employed by NEMOURS who should be contacted by a User or NemoursLink Partner to report certain events or problems as required by this Agreement. The contact information for the Technical Liaison is contained in paragraph 14 below.
- User means an employee of the NemoursLink Partner, who has a current license to practice nursing in the jurisdiction where the NemoursLink Partner is located, who is authorized by the NemoursLink Partner to obtain access to the Service, who has signed a NemoursLink User Agreement, and whose access to the Service has been approved by Nemours.
- Term and Termination. This Agreement is effective on the date first listed above and will continue until either party notifies the other in writing of its intent to terminate. Either party may terminate this Agreement by sending written notice of the intent to terminate. NEMOURS retains the right to unilaterally terminate access, in its sole discretion, without advance notice to NemoursLink Partner. Nemours will consider any unauthorized use of the Service as a material breach of this Agreement and grounds for immediate termination of this Agreement. Upon termination of this Agreement, NemoursLink Partner agrees to ensure that its Users discontinue accessing the Service immediately.
- Nemours' Data. Nemours' Data contains Confidential Patient Information and Proprietary Information, which is the sole property of NEMOURS. The parties agree and understand that the Nemours' Data will remain the property of NEMOURS and that there is no intent to transfer any rights or legal interest in Nemours' Data to the NemoursLink Partner. NemoursLink Partner agrees that it will not copy or use Nemours¿ Data for any purpose except as set forth in paragraph 5 below.
- Permitted Use of Service. NemoursLink Partner understands that Confidential Patient Information which can be accessed using the Service is protected from unlawful disclosure by state and federal laws and regulations. NemoursLink Partner further understands access to Confidential Patient Information by a User is limited to treatment related purposes, except in cases where the parent/legal guardian has authorized the User to access the Student's Confidential Patient Information for Non-Treatment Related Purposes. PRIOR to accessing the Student¿s Confidential Patient Information for Non-Treatment Related Purposes, the User is responsible for verifying that a HIPAA/FERPA Authorization authorizing access for that purpose is on file in the school, and has been transmitted to Nemours (Exhibit A). NemoursLink Partner agrees that it (including its employees, officers and agents) will comply with all applicable laws and regulations, and the terms of this Agreement, in its access and use of the Service. NemoursLink Partner further understands that if Confidential Patient Information is accessed for Non-Treatment Related Purposes without a valid HIPAA/FERPA Authorization, such access would constitute a data breach under HIPAA/HITECH rules, necessitating notification to individuals involved and possibly others, depending on the size of the breach.
- Prohibited Use of Service. NemoursLink Partner agrees it will not access or use the Service for any purpose other than those set forth in paragraph 5 above and if NEMOURS determines that NemoursLink Partner has accessed or used the Service in a prohibited or unlawful manner, NEMOURS may unilaterally terminate all access and seek any such other relief as appropriate. Specifically, NemoursLink Partner and its Users may not:
- Access, use or disclose Nemours' Data for any purpose other than those listed in paragraph 5;
- Disclose to any third party, transfer to any third party, sell to any third party, or otherwise permit or facilitate third party access to the Nemours¿ Data;
- Access, use or disclose Nemours' Data with the intent to negatively impact the competitive advantage of NEMOURS in the marketplace.
- Confidentiality of Patient Information. NemoursLink Partner understands that the Service provides secure access to Confidential Patient Information, including protected health information ("PHI") as defined by HIPAA/HITECH. NemoursLink Partner agrees to comply with HIPAA/HITECH in its use of the Service and take all reasonable and necessary measures and precautions as required by HIPAA/HITECH to maintain the security and privacy of the electronic Confidential Patient Information it accesses. Specifically, NemoursLink Partner agrees to:
- Report to the Technical Liaison any unauthorized access, use or disclosure of Confidential Patient Information (or Proprietary Information) of which NemoursLink Partner becomes aware;
- Take appropriate precautions to ensure that Students, visitors, or unauthorized personnel will not be able to see the computer screens during Service access;
- Advise Students requesting amendments to their medical records that the NemoursLink Partner does not have the authorization or the ability to alter the Confidential Patient Information accessed or acquired via NemoursLink and that any amendments or corrections to it must be accomplished by contacting NEMOURS directly; and,
- In response to a request for disclosure of Nemours Data from a court, governmental agency, or any other source, notify the Technical Liaison prior to any disclosure and allow Nemours the opportunity to seek a protective order to protect Nemours Data.
- Obligations of NemoursLink Partner.
- Equipment and Supplies. NemoursLink Partner is solely responsible for the costs of the equipment, maintenance, and supplies required for access to and use of the Service. Such costs include, but are not limited to, cost of acquisition, installation, operation and maintenance of personal computers and printers; costs related to wiring, hardware, software, phone charges, and Internet access services; and costs of ongoing equipment and supply upgrades.
- Identification of Users. NemoursLink Partner will provide a written list to the Technical Liaison identifying the Users authorized by the NemoursLink Partner to access Nemours' Data. If additional Users are later desired, or if a User needs to be removed for any reason, NemoursLink Partner will complete the NemoursLink Partner Access/Change Request form (Exhibit B) and contact the Technical Liaison to effect these changes.
- Approved Users. Users of a NemoursLink Partner must sign a NemoursLink User Agreement. Nemours will maintain the signed User Agreements in its office(s) and notify the NemoursLink Partner when the User has approval to access Nemours' Data. NemoursLink Partner agrees that it will take immediate steps to discontinue a User's access in the event it determines that the User improperly accessed the Service or improperly used Confidential Patient Information or Proprietary Information obtained via access to the Service, or shared passwords with another individual, or otherwise violated this Agreement, the User Agreement, or state or federal law, and will further notify the Technical Liaison of same.
- Non-Treatment Related Purposes. NemoursLink Partner is responsible for ensuring its Users understand the limitations on accessing the Service for Non-Treatment Purposes and abide by those limitations. PRIOR to accessing the Student's Confidential Patient Information for Non-Treatment Related Purposes, the User is responsible for verifying that a HIPAA/FERPA Authorization authorizing access for that purpose is on file in the school, and has been transmitted to Nemours. NemoursLink Partner will retain a copy of the Authorization on file for six (6) years from date of access of the Service on the basis of such Authorization, and provide a copy of the same promptly to NEMOURS on request.
- Ensure Appropriate Use of Service. NemoursLink Partner agrees it will not change or alter the Service software in any way, and in the event it suspects any problems related to unauthorized data alteration or destruction, immediately report the problem to the Technical Liaison.
- Representations and Warranties. NemoursLink Partner represents that it is in compliance with all applicable state and federal laws and regulations governing the provision of healthcare to Students, and that neither it nor any of its Users, employees, agents, or officers has been debarred, penalized by, convicted, sanctioned, suspended, excluded or otherwise deemed ineligible to participate in any state or federal reimbursement program, including Medicaid or Medicare. In the event that NemoursLink Partner or any of its Users, employees, agents, or officers are sanctioned or excluded from participation in any state or federal reimbursement program as described above, NemoursLink Partner will immediately notify the Technical Liaison and NEMOURS may, in its sole discretion, terminate this Agreement and provide written notice to NemoursLink Partner.
- Assignment. Neither this Agreement nor any of the rights herein may be assigned by NemoursLink Partner without the express, prior written approval of NEMOURS. NEMOURS may, without the consent of NemoursLink Partner, assign the rights and obligations herein to any entity affiliated with NEMOURS.
- Relationship of the Parties. It is expressly understood and agreed that this Agreement is not intended to, and does not, create a joint venture, partnership, association, or other affiliation or business relationship between the parties. NEMOURS and NemoursLink Partner shall at all times be separate legal entities and are not liable for the debts or obligations of the other party.
- Insurance and Indemnification.
- Insurance. Each party agrees to obtain or fund at their own cost, appropriate professional liability and general insurance coverage with limits of no less than $1,000,000 per occurrence to insure itself and its employees against liability for claims brought by third parties in connection with its provision of healthcare services and performance of its duties and responsibilities under this Agreement.
- Indemnification. NemoursLink Partner agrees to indemnify, protect, save and hold harmless NEMOURS, its officers, employees and agents, from and against any and all losses, damages, injuries, claims, demands and expenses (including attorney¿s fees and legal expenses) of whatsoever kind and nature, arising on account of or related to any negligent act or omission, including failure to obtain a valid HIPAA/FERPA Authorization prior to accessing the Service for Non-Treatment Related Purposes, willful misconduct or breach of this Agreement by NemoursLink Partner or one of its Users or officers, employees or agents resulting in liability and/or damages to NEMOURS. This provision shall survive termination of this Agreement.
- Applicable Law and Disputes. This Agreement shall be construed, and the rights and liabilities of the parties determined, in accordance with the laws of the state of Delaware, except with regard to the conflicts of law principles of the state of Delaware to the extent they would apply the laws of another state to this Agreement. If any dispute arises under this Agreement and results in litigation, the losing party shall pay the prevailing party all costs of litigation, including reasonable attorney's fees.
- Survival of Certain Provisions. The obligations of the parties to this Agreement pertaining to insurance and indemnification, confidentiality and HIPAA/HITECH compliance, and permitted and prohibited uses of Nemours' Data set forth in paragraphs 5, 6, 7, 8 and 11 shall survive and continue beyond the termination of this Agreement.
- Notices. Any notices under this Agreement shall be made in writing and effective upon receipt. Such notices shall be personally delivered, sent by registered or certified mail, by a nationally recognized overnight delivery service, or sent by facsimile or electronic mail with confirmation, addressed as follows, unless such address is changed by written notice hereunder:
If to NEMOURS: If to (NemoursLink Partner)
Nemours Children's Clinic
Attention: Health Informatics
9161 Narcoossee Road, Suite 206
Orlando, FL 32827
Fax: (407) 650-7382
With copy to:
The Nemours Foundation
Office of Contracts Administration
10140 Centurion Parkway North
Jacksonville, FL 32256
Fax: (904) 697-4070
- Entire Agreement and Waiver. This Agreement constitutes the entire agreement between the parties and supersedes all other written or oral agreements with respect to the subject matter hereof. This Agreement may not be altered, amended or modified except as agreed in writing by the parties. No consent or waiver, express or implied, by either party in the performance by the other party of its obligations under this Agreement shall be deemed or construed to be a consent to or waiver of any other breach or default by the other party.
- Counterparts and Electronic Signature. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed signature page by facsimile transmission or PDF will be as effective as delivery of a manually signed counterpart.
IN WITNESS HEREOF, the parties have executed this Agreement as of the day and year first written above.
BELOW FORM IS FOR VIEWING PURPOSES ONLY
Exhibit A: Authorization to Use/Disclose Private & Protected Health and Education Records Information To and From Schools
DELAWARE PUBLIC SCHOOLS
AUTHORIZATION TO USE/DISCLOSE PRIVATE & PROTECTED HEALTH AND EDUCATION RECORDS INFORMATION TO AND FROM SCHOOLS
Student's Name: _____________________________ Date of Birth: ____________________
Phone: _______________________ Address: _______________________________________
RELEASE MEDICAL AND/OR EDUCATION RECORDS BETWEEN:
|Facility or Name: _____________________ |
Phone #: _________ Fax: ___________
|District & School Name: ________________|
Phone #: ___________ Fax: ___________
|Initial ||Treatment and Non-Treatment; Medical Inforamtion Sharing |
| ||I authorize the school nurse to have access to the non-treatment related information (for example physical forms, letter restricted school activities, or immunization records).|
| ||I authorize school personnel to share educational informaiton (inlcuding school health) with medical personnel for treatmetn purposes (for example absence notes, attendance information, accommodations, and frequency of school nurse office visits.|
- I may revoke this authorization at any time by notifying the organization or person noted above in writing.
- I understand that my revocation does not affect any disclosures made prior to the revocation being received and processed.
- I understand the information disclosed may be subject to re-disclosure and no longer be protected by federal or state privacy regulations.
- I have the right to inspect or copy the information to be used/disclosed as permitted by federal law.
- I may refuse to sign this authorization and understand that it is strictly voluntary.
- If I do not sign this form, my health care and the payment for my health care will not be affected.
- If this authorization originated with the provider, I will receive a copy of this form after I sign it.
|EXPIRATION DATE OR EVENT: This authorization will expire June 30, following the date of signature, unless otherwise specified. |
(other specified date or event): _____________________________________
I authorize the exchange of Private Information and/or Information from Education Records and /or Protected Health Information between the above named agencies for the specific reports/purposes identified above. I recognize that the school nurse is part of the care/treatment team and has access to my child's medical record.
|Patient/Guardian/Representative Signature*: || ________________________________||Date: ||___________________|
|Patient/Guardian/Representative Signature: || ________________________________||Relationship to Patient: ||___________________|
|Witness Signature: || ________________________________||Date:||___________________ |
* Parent or eligible student as required and defined by Family Education and Privacy Rights Act (FERPA)
DELAWARE SCHOOL - AUTHORIZATION TO USE/DISCLOSE PRIVATE & PROTECTED HEALTH INFORMATION TO AND FROM SCHOOLS