How to Improve Contracting by Making Colleagues Smarter

This week I was traveling for work to attend our Sales Kickoff and did not have time to finish drafting my next entry in my series on Mastering SaaS Agreements. So, instead, I'm going to share the breakout session on Negotiation Skills that I developed and led to make my colleagues smarter on contract issues that we routinely encounter as a business.

When you have a technology solution that accesses, stores, maintains, or transmits protected health information ("PHI") then under HIPAA, you're a "Business Associate" of the "Covered Entity" and you will need to enter into a Business Associate Agreement ("BAA") in addition to the commercial agreements.

New Entrants in a Growing Healthcare Industry Need Help

Ensuring your team in the field knows when to communicate back that a new deal is for a solution that concerns PHI is the best way to avoid the mistake of not putting a BAA in place when you're legally required to. New entrants into the growing healthcare industry are not likely to come in familiar with PHI and the need for a BAA when it's a concern. So how can you teach them the importance of PHI?

Simulated Deal Negotiations > Slide Decks

I decided to convey this point to Account Executives (AEs) and Solution Executives (SEs) in a deal setting. I facilitated a simulated negotiation during my breakout session at SKO. I created a fact pattern where one side represented an urgent care center with a new parking garage, and one side represented a vendor of parking garage software. They are trying to come to terms on a deal but there's been a budget shortfall and the urgent care center's attorney has redlined the contract to require unlimited liability for damages related to breach of confidentiality or security of PHI. The facts note that the software is already priced at the maximum discount and that the only data concerned is license plate data.

My session had around 30 attendees and I divided them into six teams, three representing the urgent care center and three representing the vendor. The teams had client instructions, directing them on what outcome they wanted to get to. After the teams prepared they met and began negotiating. Some would take breaks and then come back together. Others plowed through to a deal. My boss, our Chief Legal Officer, helped me by being the counsel for the Vendor teams, and my colleague, our Senior Legal Counsel, helped me by being the counsel for the urgent care center. This way, they could practice consulting counsel too! (^_~)

In the end, everyone was able to figure out that License Plate data was not PHI. Impressively, many attendees then inquired if it was Personally identifiable information (PII)--unprompted! This resulted in not only making them smarter about PHI but also data issues generally.

Make it Real to Make it Memorable

I'm pleased to say that the feedback from the attendees at my session was tremendously positive. I am confident they will be better at remembering to consider if PHI is a concern and better at raising questions with legal related to data having practiced navigating the issue in a deal context than they would be from any presentation I put together.

So, if there's a contract issue that you want to improve your colleagues' understanding of or make them smarter about, consider conducting a simulated negotiation where that issue has to be resolved alongside the commercial terms.

It's also a lot more fun than clicking through slide deck!