Risk Allocation in Business Associate Agreements: Structuring Indemnification Provisions and Beyond

McDonald Hopkins' Rick Hindmand will be presenting as part of a panel on "Risk Allocation in Business Associate Agreements: Structuring Indemnification Provisions and Beyond" during this virtual program presented by barbri. 

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.