Soumya Shekhar

Soumya Shekhar

Soumya is an independent legal consultant with over 7 years of experience. An alumnus of National Law University, Delhi and National University of Singapore, she has worked with various Tier-1 Law firms and is an expert in employment law, contract drafting and legal research. She enjoys writing and has been actively contributing articles for LegalKart for more than a year.

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HIPAA Compliance Explained: Learn how to become HIPAA complaint
Corporate

HIPAA Compliance Explained: Learn how to become HIPAA complaint

A HIPAA confidentiality agreement secures the protected healthcare information ("PHI") of clients and patients. These agreements derive their name from the United States' Health Insurance Portability and Accountability Act of 1996, which mandates that patients' healthcare information remains strictly confidential. Thus, these agreements enforce an organization's obligations under the Act. Such duties mainly deal with the healthcare status of an individual and healthcare payment-related details. 

Healthcare providers sign HIPAA with third parties. Such third parties include but are not limited to, supply vendors, employees, contractors, volunteers, and even patients. While other agreements have different nuances, they each have some standard features. A patient's is confidential, so none of the information can be shared, collected, or used by whichever party acquires them. Furthermore, HIPAA mandates both civil and criminal action against violators: Offences attract a fine of up to $ 1,500,000 yearly, while "wilful offenders" may receive a jail sentence of upto 10 years. 
 

HIPAA CONFIDENTIALITY AGREEMENT FOR PATIENTS

HIPAA agreements are mainly concerned with the protection of a patient or client's health information. Thus, anyone signing the agreement cannot use, share or record such information without explicit authorization. 

However, patients may also accidentally have access to the health information of another patient. In such cases, they will be covered by HIPAA and have obligations under it. 

HIPAA CONFIDENTIALITY AGREEMENT FOR VENDORS 

HIPAA covers agreements with "Business Associates", which are defined as organizations that are not the other party and are involved in handling sensitive personal information. These are limited to organizations providing administrative, legal, accounting, consulting, management, etc. They do not include vendors of medical supplies, who may only incidentally have access to PHI.

Nevertheless, hospitals and clinics must also sign a HIPAA Agreement with their vendors. This agreement should clarify the nature of the relationship, i.e. a vendor is not considered an "employee" but a contractor. However, it should clarify that even if vendors incidentally or accidentally access the PHI of a patient/client, they are to strictly not distribute, use, or record this information. This requirement is materially similar to HIPAA Agreements for patients.

 

HIPAA CONFIDENTIALITY AGREEMENT FOR VOLUNTEERS

Volunteers are individuals who are involved in assisting the organization in a variety of ways. Most of them are very involved in the use of patients' confidential health information. As a result, they must sign HIPAA contracts. 

Most organizations that regularly deal with volunteers and students develop HIPAA policies. These policies usually lay out the HIPAA obligations of any student or volunteer involved with the organization. A policy makes these obligations accessible and clearly defined. 

Apart from the obligations mentioned in the above two sections, volunteers have additional obligations since they are more closely involved with health data:

  • The PHI or confidential information of any patient should not be altered or deleted to any extent

  • The use of such data should be restricted to the minimum possible limit

  • Passwords and other information that gives access to sensitive data should be securely handled

  • Any concerns regarding the integrity of PHI are communicated to dedicated individuals within the organization

  • Revealing such data or using this information is indefinitely prohibited, even post-termination. 

It is crucial to confer confidentiality onto an individual's health data. HIPAA made a positive step in this direction by making it compulsory for organizations to handle this information. A culture has developed around HIPAA where organizations take their obligations seriously, and a patient's information is protected. Health information is deeply personal, and it must remain protected.

A variety of stakeholders can be exposed to a patient's data. This can include volunteers and contractors, but also other patients. Each of these individuals must understand their obligations under HIPAA. The contract is an effective way to provide adequate intimation and enforcement. While patients and vendors have reduced obligations, volunteers and interns are exposed to more PHI and thus require more scrutiny. Nevertheless, the system is generally conducive to protecting patient privacy and confidentiality.

How to Break a Non-Disclosure Agreement?
Agreement & Contract

How to Break a Non-Disclosure Agreement?

A Non-Disclosure Agreement ("NDA") is a legally enforceable agreement that falls under the ambit of the Indian Contract Act, 1872, which serves as the umbrella legislation for all contracts and agreements. This agreement protects and maintains the confidentiality of vital information disclosed between the parties, including trade secrets.

NDAs are also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA), secrecy agreement (SA), or non-disparagement agreement.

The NDA prevents the disclosure of a company's trade secrets or sensitive information to competitors or unauthorised parties who could use the knowledge to cause irreparable harm to the disclosing party. When they sign the agreement, the disclosing party and the receiving party agree on what constitutes confidential information and what does not.

NDAs preserve the confidentiality of information provided between parties and safeguard the business's intellectual property. Typically, the initial round of talks requires the disclosure of numerous sorts of information. This mandates that the parties remain committed by the NDA and refrain from violating it, as doing so may have legal repercussions.

What happens if you break a non-disclosure agreement?

A breach of an NDA is a civil wrong. NDAs are legally enforceable contracts. When parties sign an NDA, the party receiving the confidential information must keep it secret. If the receiving party chooses to divulge confidential information to an unauthorised third party or entity, the party will incur legal consequences or penalties.

In addition to obligating the parties to keep secret information private, NDAs offer legal remedies and penalties for any breach of the agreement, such as injunctions, indemnification, etc. In addition to injunctive remedies, breaches of NDAs can result in substantial monetary fines. Before signing a non-disclosure agreement (NDA), one should thoroughly review the document.

Why you should not violate a non-disclosure agreement?

NDAs deter persons from disclosing sensitive information to third parties or the general public, and severe penalties accompany them. In many circumstances, the agreement will specify the consequences of breaking the NDA. The following are some instances of penalties for violating an NDA: injunction, indemnity, damages, termination from employment, loss of business reputation, clients, etc.

A NDA would typically contain language that would entitle the Disclosing Party to resort to any legal remedies it deems fit. Such wide language in itself should sound a warning bell to the Receiving Party. It is better to comply with confidentiality obligations than breach a NDA.

Non-Disclosure Penalty Clause

It can be difficult to quantify the losses caused by a breach of the secrecy provision; thus, it may be advantageous to include a penalty clause that specifies an acceptable amount for the damage caused by a breach of contract. If the penalty is already mentioned in the contract, there will be a fear of having to pay substantial damages, which would not exist if the party intended to rigorously adhere to the contractual commitments.

The penalties for violating the agreement are often laid out in the agreement, including injunction, indemnity, and damages. It is essential to mention that the Specific Relief Act of 1963 and the Code of Civil Procedure, 1908 govern these preventive reliefs.

People Also Read This: Employee Confidentiality and Non-Disclosure Agreement for Employees

Injunction

The non-breaching party may petition the court for an order prohibiting the Receiving Party from disclosing the secret information. The objective of requesting a temporary or permanent injunction is to prevent the defendant (the Receiving Party) from committing future violations or inflicting further injury to the aggrieved party (the Disclosing Party).

Indemnity

The Receiving Party must indemnify the Disclosing Party for any fees, expenses, or damages incurred by the Disclosing Party due to any breach of this Agreement's provisions. Court fees, litigation costs, and actual, reasonable attorney's fees are all included in this obligation.

People Also Read This: What Is A Non-Compete Clause In An Employment Contract?

Damages

If the Receiving party violates an NDA, the Disclosing Party may file a lawsuit in court to prohibit additional disclosures and sue the violating party for monetary damages.

In conclusion, non-disclosure agreements (NDAs) are low-cost, simple-to-create, legally binding contracts that keep private information confidential between two or more parties. When establishing an NDA, it is crucial to be as clear as possible so that all parties understand what information can and cannot be divulged, as well as the consequences for doing so. A contract may be null and unenforceable if the language is unduly broad, unreasonable, or burdensome. The courts will also contest or nullify contracts that are overly broad, oppressive, or attempt to contain non-confidential information. In addition, if the material is made public, the Disclosing Party is unable to enforce the NDA.

Always consult a lawyer before signing a nondisclosure agreement. Be on the lookout for onerous clauses and exercise extreme caution before signing. 

Consequences of violating a non-disclosure agreement (NDA)

Breach of a non-disclosure agreement (NDA) may result in legal action, such as a lawsuit, for breach of contract. Damages might vary depending on the agreement's terms, the gravity of the breach, and the magnitude of the harm inflicted. In addition, breaking a non-disclosure agreement can destroy a person's reputation, trustworthiness, professional relationships, and future employment opportunities. 

Partition Of Property Under Hindu Law
Property

Partition Of Property Under Hindu Law

Partition is the process of division of property. The Hindu Succession Act, 1956 ("Act") regulates the partition of property under Hindu Law. 

There are two types of partition under Hindu Law Succession Act. 

  1. Self-Acquired Property 

  2. Ancestral Property 

Property obtained by someone in their lifetime and not inherited from their ancestors is Self-Acquired Property. On the other hand, Ancestral property is property inherited from one's forefathers. Further, Succession itself is of two types: Testamentary Succession and Intestate Succession. 

  1. Types of Succession

As noted, Succession with partition can either be Testamentary or Intestate. Testamentary Succession occurs if there is a will. As long as the will is valid and enforceable, the will has to be executed, and the inheritance provisions do not apply. Part VI of the Indian Succession Act, 1925, further elaborates on provisions related to wills. The will should be clear, reduced to writing, signed by the testator and two independent witnesses. 

By contract, Intestate Succession is primarily covered by the laws of inheritance. For Hindus, these are governed by the Hindu Succession Act, 1956. 

  1. Rules of Succession under Hindu Law

Succession with partition itself depends on whether the property is a self-acquired property or an intestate property.

  1. Succession of Self-Acquired Property

Self-acquired property is also known as coparcenary property. Individuals only have an "interest" in such property, and they receive a share in the property if they have an interest in it. Thus, the "devolution of interest" is an important concept.

People Also Read This: Supreme Court Judgments On Ancestral Property

Section 6 of the Act comprehensively discusses the devolution of interest in cases of the death of a Hindu male. The property will devolve to all coparceners within the dictates of Mitakshara law. However, the Act is progressive and has included women and female heirs within the coparcenary. 

  1. The succession of Ancestral Property

The rules of distribution of property in Hindu law are given under Chapter II of the Hindu Succession Act, 1956.

A Hindu male's basic rules of Succession are codified under Sections 8 and 9 of the Act. Under these provisions, the order of Succession is as follows:

Relatives specified in Class 1 > Relatives specified in Class 2 > Agnates of the deceased > Cognates of the deceased. 

The Succession is exclusive. This means that if there are any Class 1 heirs, they will all receive a share in property and exclude heirs from other categories. If there is no class 1 heir, then all members of Class II will exclusively receive an a of the property, and so on. This is the order of Succession clarified in Section 9 of the Act. 

The list of relatives under Class I & II are mentioned under the Schedule to the Act. Class I heirs primarily include the son, daughter, mother, etc. – Usually, the deceased's closest relatives. Class II heirs are more distant but somewhat related: they include the father, son's daughter's son, son's daughter's daughter, and so on. Sections 10 and 11 state the rules of Succession for Class I and II heirs.

The property of an intestate shall be divided among the heirs in class I of the schedule by the following rules- 

Rule 1: The intestate of window (s) shall take one share each. 

Rule 2: The surviving sons and daughters and the mother shall take one share each

Rule 3: The heir in the branch of each pre-deceased son or daughter shall take one share between them. 

This is also applicable to Class-II heirs.

People Also Read This: How to Inherit Property in India?

Finally, property devolves to cognates and agnates. A cognate is any blood relative from the mother's side, while an agnate is any blood relative from the father's side. While both Class I and II heirs receive equal shares, Section 12 of the Act mentions the hierarchy in Succession among the cognates and agnates. 

For females, similar rules are followed. These can be found under Sections 15 and 16 of the Hindu Succession Act.

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