Embed Size (px)
Citation preview
REQUEST FOR PROPOSALS (RFP)
AMBULANCE BILLING SERVICES
Date of Issuance: November 13, 2019
Issued by: City of Burlington - Fire Department
Due Date for Proposals: December 12, 2019
Issuing Point of Contact: Robert J. Plante, Deputy Fire Chief
136 South Winooski Avenue
Burlington, Vermont 05401
(802) 658-7661 (p)
(802) 865-5387 (f)
All questions regarding this procurement shall be directed in writing to Robert Plante and
received no later than noon on November 27, 2019.
Any unauthorized contact between any prospective proposer and any official or employee
of Burlington on or after date of issuance may, at the unilateral determination of the City,
be grounds for disqualification of the proposer’s proposal.
DEADLINE FOR RECEIPT OF PROPOSALS
All replies and proposals in response to the Request for Proposal must be received in a
sealed envelope clearly marked “Ambulance Billing Service RFP Response” to the
address and point of contact no later than 2:00 pm EST on the above due date at which
time all submitted proposals will be publicly opened and recorded. Late proposals will
not be accepted. Electronic proposals are preferred as long as they are received by the
point of contact by the required deadline.
REVISIONS TO REQUEST FOR PROPOSAL
If it becomes necessary to revise any part of this RFP, an addendum will be posted on the
City of Burlington website and sent to any person who submitted a proposal by the RFP
deadline.
SCOPE OF WORK
The City of Burlington, Vermont (City) desires to contract for the following services
related to the billing for ambulance services provided by the City through its Fire
Department for the period July 1, 2020 to June 30, 2023.
Mail clients patient insurance information request forms or otherwise obtain
necessary billing information.
Bill all clients receiving services.
Follow-up with the Fire Department with any questions to verify
information to facilitate coding for billing of services.
Receive and process all paperwork and respond to all telephone calls for the
Burlington Fire Department in relation to ambulance billing and collection.
Record all cash receipts and send deposits weekly to City Hall (the City
may consider alternative proposal for this service).
Provide and pay for all computer-related hardware and software support and
upgrade expenses related to maintaining automated record keeping and
claims processing of ambulance client records.
Provide collection services within the constraints of the City collection
policies.
Provide ambulance billing reports to the City each quarter. Such reports
shall include, but are not necessarily to be limited to:
o Ambulance Services Cash Receipts by month, by funding
source;
o Revenue by month, by funding source;
o Monthly cash deposits report indicating deposits for the month
and related month of service;
o Billing and revenue by type of service;
o Uncollected bills; Aging Reports; Type of bad
debts/uncollectable
o Additional reports upon request of department administration.
Work with any collection agency identified by the City of Burlington.
Utilize the State of Vermont SIREN system to obtain billing information.
Provide strategy for improved billing efficiency and long-term planning.
The successful bidder must dedicate the staffing needed to provide the required
ambulance billing and collection services. All personnel working on Ambulance Billing
services must pass a fingerprint supported criminal background check. In addition, the
successful bidder must be able to stay current with system upgrades needed to provide
optimal billing performance and must train and supervise the ambulance billing staff and
provide staff as needed for any aspect of the ambulance billing and reporting of
collections. All personnel working on Ambulance Billing services must also adhere to all
regulations and standards regarding privacy of medical record information, including but
not limited to the federal Health Insurance Portability and Accountability Act of 1996
(HIPAA).
RESPONSE FORMAT
Bidders are encouraged to be concise. All proposals must include, but are not limited to
the following:
1. Letter of Transmittal and three (3) copies of the proposal (preferably double-
sided) if sent through the mail. If sent electronically, all documents shall be in pdf
format.
2. Lump sum bid price and alternate proposal. Percentage revenues collected and
estimated time to complete on all bid projects.
3. A brief description of your firm’s history and experience with ambulance billing.
If your firm intends to partner with another company, also provide pertinent
information on the partner.
4. A work history of up to three (3) related projects showing for each:
a. Name, address and phone number for each client.
b. Brief project description.
c. Statement as to whether rollout completion was on time and within
budget.
5. Location of the office from which the management of the project will take place.
6. Completion of Livable Wage, Outsourcing and Union Deterrence Certifications
7. State when the bid terminates.
8. Sample of reports (ie. billing and A/R reconciliation reports).
CONTRACTOR SELECTION
Proposal review and evaluation by Department staff is based on information provided in
the proposal. Additional information requests may be made prior to final selection. The
selected bidder shall be willing to enter into an agreement with the City similar to the
Draft Agreement provided in Appendix B.
CONTRACT REQUIREMENTS
Bidders are encouraged to review the Draft Agreement (Appendix B), the Livable Wage,
Non-Outsourcing, and - Union Deterrence Ordinances (Attachment A) and the Business
Associate Agreement (Attachment C) in advance of submitting a proposal. The City of
Burlington reserves the right to alter or amend any or all of these provisions in the project
contract.
INDEMNIFICATION Any party responding to this Request for Proposals is acting in an independent capacity
and not as officers or employees of the City. Any party responding to this Request for
Proposals shall indemnify, defend and hold harmless the City and its officers and
employees from liability and any claims, suits, expenses, losses, judgments, and damages
arising as a result of the successful bidder’s acts and/or omissions in or related to the
submission of the response.
PUBLIC RECORDS
Any and all records related to City, whether electronic, paper, or otherwise recorded, are
subject to the Vermont Public Records Act and the determination of how those records
must be handled is solely within the purview of the City. The successful bidder must
agree to retain, in its files, and to produce to the City within the time periods requested,
all books, documents, accounting records, and other evidence related to City, at any time
during this Agreement.
LIMITATIONS OF LIABILITY
The City of Burlington, Vermont assumes no responsibility and liability for costs
incurred by parties responding to this RFP or responding to any further requests for
interviews, additional data, etc., prior to the issuance of the contract.
COSTS ASSOCIATED WITH PROPOSAL
Any costs incurred by any person or entity in preparing, submitting, or presenting a
proposal are the sole responsibility of that person or entity. The City will not reimburse
any person or entity for any costs incurred.
REJECTION OF PROPOSALS
The City reserves the right to reject any or all proposals, to negotiate with one or more
parties, or to award the contract to the proposal the City deems will meet its best interests,
even if that proposal is not the lowest bid. The City reserves the right to re-advertise for
additional proposals and to extend the deadline for submission of the proposals. This
Request for Proposals in no way obligates the City to award a contract.
OWNERSHIP OF DOCUMENTS Any materials submitted to the City in response to this Request for Proposals shall
become the property of the City unless another arrangement is made by written
agreement between the City and the responding party. The responding party may retain
copies of the original documents.
CONTRACTING
The Contractor, prior to being awarded a contract, shall apply for registration with the
Vermont Secretary of State's Office to do business in the State of Vermont, if not already
so registered. The registration form may be obtained from the Vermont Secretary of
State, 128 State Street, Montpelier, VT 05633-1101, PH: 802-828-2363, Toll-free: 800-
439-8683; Vermont Relay Service – 711; web site: https://www.sec.state.vt.us/. The
contract will not be executed until the Contractor is registered with the Secretary of
State's Office. The successful Contractor will be expected to execute sub-agreements for
each sub-consultant named in the proposal upon award of this contract.
Prior to beginning any work, the Contractor shall obtain Insurance Coverage in
accordance with the Burlington Contractor Conditions (Appendix B in this RFP). The
certificate of insurance coverage shall be documented on forms acceptable to the City.
If the award of the contract aggrieves any firms, they must appeal in writing to the City.
The appeal must be post-marked within seven (7) calendar days following the date of
written notice to award the contract.
PUBLIC RECORDS Any and all records submitted to the City, whether electronic, paper, or otherwise
recorded, are subject to the Vermont Public Records Act. The determination of how those
records must be handled is solely within the purview of City. All records the responding
party considers to be trade secrets, as that term is defined by subsection 317(c)(9) of the
Vermont Public Records Act, or that the responding party otherwise seeks to have the
City consider as exempt must be identified clearly and specifically at the time of
submission. It is not sufficient to merely state generally that a proposal is proprietary,
contains a trade secret, or is otherwise exempt. Particular records, pages, and sections
which are believed to be exempt must be specifically identified as such and must be
separated from other records with a convincing explanation and rationale sufficient to
justify each exemption from release consistent with Section 317 of Title 1 of the Vermont
Statutes Annotated.
APPENDIX B DRAFT AGREEMENT
AGREEMENT FOR AMBULANCE BILLING SERVICES
BY AND BETWEEN THE
CITY OF BURLINGTON, VERMONT
AND
____________________
The City of Burlington, Vermont (City), a municipal corporation organized under the
laws of the state of Vermont, and VENDOR agree:
1. VENDOR responsibilities. The VENDOR shall provide the City, through the
Burlington Fire Department the following services:
Mail clients patient insurance information request forms or otherwise obtain
necessary billing information.
Bill all clients receiving services.
Follow-up with the Fire Department with any questions to verify
information to facilitate coding for billing of services.
Receive and process all paperwork and respond to all telephone calls for the
Burlington Fire Department in relation to ambulance billing and collection.
Record all cash receipts and send deposits weekly to City Hall. (Subject to
change with written approval of City)
Provide and pay for all computer-related hardware and software support and
upgrade expenses related to maintaining automated record keeping and
claims processing of ambulance client records.
Provide collection services within the constraints of the City collection
policies.
Provide ambulance-billing reports to the City each quarter. Such reports
shall include, but are not necessarily to be limited to:
o Ambulance Services Cash Receipts by month, by funding
source;
o Revenue by month, by funding source;
o Monthly cash deposits report indicating deposits for the month
and related month of service;
o Billing and revenue by type of service;
Additional reports are to be made available upon request.
Work with any collection agency identified by the City of Burlington.
Utilize the State of Vermont SIREN system to get billing data.
2. VENDOR staffing. The VENDOR shall dedicate the staffing needed to provide
the required ambulance billing and collection services. All personnel working on
Ambulance Billing services shall pass fingerprint supported criminal background
check. VENDOR shall stay current with system upgrades needed to provide
optimal billing performance. VENDOR shall train and supervise the ambulance
billing staff and provide staff as needed for any aspect of the ambulance billing
and reporting of collections. VENDOR staff shall adhere to all regulations and
standards regarding privacy of medical record information, including but not
limited to the federal Health Insurance Portability and Accountability Act of 1996
(HIPAA).
3. City responsibilities. The City shall be responsible to:
Make weekly delivery of incident related information/reports from the
Burlington Fire Department to the VENDOR, signed for by the VENDOR.
Establish billing and collection policies.
Pay to VENDOR $__________ to provide these services.
1. RELATIONSHIP: The Consultant is an independent consultant and shall act in an
independent capacity and not as officers or employees of the City. To that end,
the Consultant shall determine the method, details, and means of performing the work,
but will comply with all legal requirements in doing so. The Consultant shall
provide its own tools, materials or equipment. The Parties agree that neither the
Consultant nor its Principal(s) or employees is entitled to any employee benefits from
the City. Consultant understands and agrees that it and its Principal(s) or employees
have no right to claim any benefits under the Burlington Employee Retirement
System, the City’s worker’s compensation benefits, health insurance, dental
insurance, life insurance, or any other employee benefit plan offered by the City.
The Consultant agrees to execute any certifications or other documents and provide
any certificates of insurance required by the City and understands that this
Agreement is conditioned on its doing so, if requested.
The Consultant understands and agrees that it is responsible for the payment of all
taxes on the above sums and that the City will not withhold or pay for Social
Security, Medicare, or other taxes or benefits or be responsible for any
unemployment benefits.
2. INDEMNIFICATION: The Consultant shall indemnify, defend, and hold
harmless the City and its officers and employees from liability and any claims,
suits, expenses, losses, judgments, and damages arising as a result of the
Consultant’s acts and/or omissions in the performance of this Agreement. If
the City, its officers, agents, or employees are notified of any claims asserted against
it to which this indemnification provision may apply, the City shall
immediately thereafter notify the Consultant in writing that a claim to which the
indemnification provision may apply has been filed. Consultant shall
immediately retain counsel and otherwise provide a complete defense against
the entire claim or suit. The City retains the right to participate, at its own
expense, in the defense of any claim, and to approve all proposed settlements of
clams to which this provision applies. Under no conditions shall the City be obligated
to indemnify the Consultant or any third party, nor shall the City be otherwise
liable for expenses or reimbursement including attorney’s fees, collection costs, or
other costs of the Consultant or any third party.
3. INSURANCE: Prior to beginning any work, the Consultant shall obtain the
following insurance coverage from an insurance company registered and licensed to
do business in the State of Vermont and having an A.M. Best insurance rating of at least
A-, financial size category VII or greater (www.ambest.com). The certificate of
insurance coverage shall be documented on forms acceptable to the City. Compliance
with minimum limits and coverage, evidenced by a certificate of insurance showing
policies and carriers that are acceptable to the City, must be received prior to the
Effective Date of the Agreement. The insurance policies shall provide that
insurance coverage cannot be canceled or revised without thirty (30) days prior notice
to the City. In the event that this Agreement extends to greater than one year,
evidence of continuing coverage must be submitted to the City on an annual basis.
Certified copies of any insurance policies may be required. Each policy (with the
exception of professional liability and worker’s compensation) shall name the City as
an additional insured for the possible liabilities resulting from the Consultant’s actions
or omissions. It is agreed that the liability insurance furnished by the Consultant is
primary and non-contributory for all the additional insured.
The Consultant is responsible to verify and confirm in writing to the City that: (i)
all sub- consultants must comply with the same insurance requirements as the
Consultant; (ii) all coverage shall include adequate protection for activities
involving hazardous materials; and (iii) all work activities related to the Agreement
shall meet minimum coverage and limits.
No warranty is made that the coverage and limits listed herein are adequate to
cover and protect the interests of the Consultant for the Consultant’s operations.
These are solely minimums that have been developed and must be met to protect
the interests of the City.
A. GENERAL LIABILITY AND PROPERTY DAMAGE: With respect to all
operations performed by the Consultant, sub-consultants, agents or workers, it is
the Consultant’s responsibility to insure that general liability insurance coverage,
on an occurrence form, provides all major divisions of coverage including, but not
limited to and with limits not less than:
1. Premises Operations
2. Independent Contractors’ Protective
3. Products and Completed Operations
4. Personal Injury Liability
5. Contractual Liability
6. Broad Form Property Damage
7. Medical Expenses
8. Collapse, Underground and Explosion Hazards
Coverage limits shall not be less than:
1. General Aggregate $2,000,000
2. Products-Completed/Operations $2,000,000
3. Personal & Advertising Injury $1,000,000
4. Each Occurrence $1,000,000
5. Fire Damage (Any one fire) $ 250,000
6. Legal/Liability $ 50,000
7. Med. Expense (Any one person) $ 5,000
B. WORKERS' COMPENSATION: With respect to all operations performed, the
Consultant shall carry workers’ compensation insurance in accordance with the
laws of the State of Vermont and ensure that all sub-consultants carry the same
workers’ compensation insurance for all work performed by them under this
Agreement. Minimum limits for Employer's Liability:
1. Bodily Injury by Accident: $500,000 each accident
2. Bodily Injury by Disease: $500,000 policy limit,
$500,000 each employee
C. PROFESSIONAL LIABILITY INSURANCE:
1. General. The Consultant shall carry _____________ professional liability
insurance covering errors and omissions made during their performance of
contractual duties with the following minimum limits:
(a) $3,000,000 - Annual Aggregate
(b) $2,000,000 - Per Occurrence
2. Deductibles. The Consultant is responsible for any and all deductibles.
3. Coverage. Prior to performing any work, the Consultant shall provide evidence of
professional liability insurance coverage defined under this section. In
addition, the Consultant shall maintain continuous professional liability
coverage for the period of the Agreement and for a period of five years
following substantial completion of construction.
D. AUTOMOBILE LIABILITY: The Consultant shall carry commercial automobile
liability insurance covering all motor vehicles, including owned, non-owned and
hired, used in connection with the Agreement. Each policy shall provide coverage
with a limit not less than: $1,000,000 Combined Single Limit for each occurrence.
E. VALUABLE PAPERS AND RECORDS INSURANCE: The Consultant shall
carry valuable papers insurance in a form and amount sufficient to ensure the
restoration or replacement of any plans, drawings, field notes, or other
information or data relating to the work, whether supplied by the City or
developed by the Consultant, sub-consultant, worker, or agent, in the event of
loss, impairment, or destruction. Such coverage shall remain in force until the
final plans as well as all related materials have been delivered by the consultant
to, and accepted by, the City. Unless otherwise provided, Valuable Papers and
Records Insurance shall provide coverage on an “individual occurrence” basis
with limits in the amount of one hundred and fifty thousand dollars ($150,000)
when the insured items are in the Consultant’s possession, and in the amount of
forty thousand dollars ($40,000) regardless of the physical location of the insured
items.
F. UMBRELLA LIABILITY:
1. $1,000,000 Each Event Limit
2. $1,000,000 General Aggregate Limit
4. GENERAL COMPLIANCE WITH LAWS: The Consultant shall comply with
all applicable Federal, State and local laws, including but not limited to the
Burlington Livable Wage Ordinance, the Non-Outsourcing Ordinance, and the
Union-Deterrence Ordinance and shall provide the required certifications attesting
to compliance with these ordinances (see attached ordinances and certifications).
Provisions of the Agreement shall be interpreted and implemented in a manner
consistent with each other and using procedures that will achieve the intent of
both Parties. If, for any reason, a provision in the Agreement is unenforceable
or invalid, that provision shall be deemed severed from the Agreement, and
the remaining provisions shall be carried out with the same force and effect as if
the severed provisions had never been a part of the Agreement.
5. CIVIL RIGHTS AND EQUAL EMPLOYMENT OPPORTUNITY: During
performance of the Agreement, the Consultant will not discriminate against any employee
or applicant for employment because of race, age, color, religion, sex, sexual orientation,
gender identity, national origin, disability or veteran status. Consultant, and any
subcontractors, shall comply with any Federal, State, or local law, statute, regulations
Executive Order, or rule that applies to it or the services to be provided under this
contract concerning equal employment, fair employment practices, affirmative action, or
prohibitions on discrimination or harassment in employment.
6. CHILD SUPPORT PAYMENTS: By signing the Agreement, the Consultant certifies,
as of the date of signing the Agreement, that the Consultant (a) is not under an
obligation to pay child support; or (b) is under such an obligation and is in good
standing with respect to that obligation; or (c) has agreed to a payment plan with the
Vermont Office of Child Support Services and is in full compliance with that plan. If the
Consultant is a sole proprietorship, the Consultant’s statement applies only to the
proprietor. If the Consultant is a partnership, the Consultant’s statement applies to
all general partners with a permanent residence in Vermont. If the Consultant is a
corporation, this provision does not apply.
7. TAX REQUIREMENTS: By signing the Agreement, the Consultant certifies, as
required by law under 32 VSA, Section 3113, that under the pains and penalties of
perjury, that the Consultant is in good standing with respect to payment, or in full
compliance with a plan to pay, any and all taxes due the State of Vermont as of the date
of signature on the Agreement.
8. REGISTRATION: The Consultant agrees to be registered with the Vermont Secretary
of State’s office as a business entity doing business in the State of Vermont at all
times this Agreement is effective. This registration must be complete prior to
Agreement execution.
9. PERSONNEL REQUIREMENTS AND CONDITIONS: The Consultant shall employ
only qualified personnel with appropriate and valid licensure, to the extent a license is
required for the work performed. The City shall have the right to approve or
disapprove key personnel assigned to administer activities related to the Agreement.
Except with the approval of the City, during the life of the Agreement, the Consultant
shall not employ:
1. Any City employees who are directly involved with the awarding,
administration, monitoring, or performance of the Agreement or any project(s)
that are the subjects of the Agreement.
2. Any person so involved within one (1) year of termination of employment
with the City.
The Consultant warrants that no company or person has been employed or retained,
other than a bona fide employee working solely for the Consultant, to solicit or secure
this Agreement, and that no company or person has been paid or has an agreement
with the Consultant to be paid, other than a bona fide employee working solely for the
Consultant, any fee, commission, percentage, brokerage fee, gift, or any other
consideration, contingent upon or resulting from the award or making of the
Agreement. For breach or violation of this warranty, the City shall have the right to
annul the Agreement, without liability to the City, and to regain all costs incurred by
the City in the performance of the Agreement.
The City reserves the right to require removal of any person employed by a
Consultant, from work related to the Agreement, for misconduct, incompetence, or
negligence as determined by the City, in the due and proper performance of
Consultant’s duties, or for neglecting or refusing to comply with the requirements of
the Agreement.
10. TRANSFERS, SUBLETTING, ETC: The Consultant shall not assign, sublet, or
transfer any interest in the work, covered by this Agreement, without prior written
consent of the City, and further, if any sub-consultant participates in any work involving
additional services, the estimated extent and cost of the contemplated work must receive
prior written consent of the City. The approval or consent to assign or sublet any portion
of the work, shall in no way relieve the Consultant of responsibility for the performance
of that portion of the work so transferred. The form of the sub-consultant’s agreement
shall be as developed by the Consultant and approved by the City. The Consultant shall
ensure that insurance coverage exists for any operations to be performed by any sub-
consultant as specified in the insurance requirements section of this Agreement.
The services of the Consultant, to be performed under the Agreement, shall not be
transferred without written authorization of the City. Any authorized sub agreements
shall contain all of the same provisions contained in and attached to the original
Agreement with the City.
11. CONTINUING OBLIGATIONS: The Consultant agrees that if because of death,
disability, or other occurrences, it becomes impossible to effectively perform its services
in compliance with the Agreement, neither the Consultant nor its surviving members shall
be relieved of their obligations to complete the Agreement unless the City agrees to
terminate the Agreement because it determines that the Consultant is unable to
satisfactorily execute the Agreement.
12. OWNERSHIP OF THE WORK: The Consultant agrees that the ownership of all
studies, data sheets, survey notes, subsoil information, drawings, tracings, estimates,
specifications, proposals, diagrams, calculations, EDM and other material prepared or
collected by the Consultant, hereafter referred to as "instruments of professional
service", shall become the property of the City as they are prepared and/or developed
during execution of the Agreement. The Consultant agrees to allow the City access to all
“instruments of professional service” at any time. The Consultant shall not copyright
any material originating under the Agreement without prior written approval of the City.
No publications or publicity of the work, in part or in total, shall be made without the
express written agreement of the City, except that Consultant may in general terms use
previously developed instruments of professional service to describe its abilities for a
project in promotional materials.
13. PROPRIETARY RIGHTS: The Parties under the Agreement hereby mutually
agree that, if patentable discoveries or inventions should result from work performed
under the Agreement, all rights accruing from such discoveries or inventions shall be the
sole property of the Consultant. The Consultant, however, agrees to and does hereby
grant to the City an irrevocable, nonexclusive, non-transferable, and royalty-free license
to the manufacture, use, and disposition of each such discovery or invention that may be
developed as a part of the work under the Agreement.
14. PUBLIC RECORDS: The Consultant understands that any and all records related
to and acquired by the City, whether electronic, paper, or otherwise recorded, are subject
to the Vermont Public Records Act and that the determination of how those records
must be handled is solely within the purview of City. The Consultant shall identify all
records that it considers to be trade secrets as that term is defined by subsection
317(c)(9) of the Vermont Public Records Act and shall also identify all other records it
considers to be exempt under the Act. It is not sufficient to merely state generally that
the record is proprietary or a trade secret or is otherwise exempt. Particular records,
pages or section which are believed to be exempt must be specifically identified as such
and must be separated from other records with a convincing explanation and rationale
sufficient to justify each exemption from release consistent with Section 317 of Title 1
of the Vermont Statutes Annotated.
15. RECORDS RETENTION: The Consultant agrees to retain, in its files, and to
produce to the City—within the time periods requested—all books, documents,
Electronic Data Media (EDM), accounting records, and other records produced or
acquired by the consultant in the performance of this agreement which are related to the
City, at any time during this Agreement and for a period of at least three (3) years after
its completion or termination. In addition, if any audit, claim, or litigation is commenced
before the expiration of that three (3) year period, the records shall be retained until all
related audits, claims, or litigation are resolved. The Consultant further agrees that the
City shall have access to all the above information for the purpose of reviewing and
audit during the Agreement period and anytime within the aforementioned retention
period. Copies of all of the above referenced information shall be provided to the City if
requested in the format in which the records were obtained, created, or maintained, such
that their original use and purpose can be achieved. Consultant, sub-consultants, or any
representatives performing work related to the Agreement, are responsible to insure that
all data and information created or stored on EDM is secure and can be duplicated if the
EDM mechanism is subjected to power outage or damage.
16. APPEARANCES:
A. Hearings and Conferences. The Consultant shall provide professional services
required by the City and necessary for furtherance of any work covered under the
Agreement. Professional services shall include appropriate representation at
design conferences, public gatherings and hearings, and appearances before any
legislative body, commission, board, or court, to justify, explain and defend its
contractual services covered under the Agreement.
The Consultant shall perform any liaison that the City deems necessary for the
furtherance of the work and participate in conferences with the City, at any
reasonable time, concerning interpretation and evaluation of all aspects covered
under the Agreement.
The Consultant further agrees to participate in meetings with the City and any
other interested or affected participant, for the purpose of review or resolution of
any conflicts pertaining to the Agreement.
The Consultant shall be equitably paid for such services and for any reasonable
expenses incurred in relation thereto in accordance with the Agreement.
B. Appearance as Witness. If and when required by the City, the Consultant, or an
appropriate representative, shall prepare and appear for any litigation concerning
any relevant project or related contract, on behalf of the City. The Consultant
shall be equitably paid, to the extent permitted by law, for such services and for
any reasonable expenses incurred in relation thereto, in accordance with the
Agreement.
17. CHANGES AND AMENDMENTS: No changes or amendments to the Work of
the Agreement shall be effective unless documented in writing and signed by authorized
representatives of the City and the Consultant.
18. APPENDICES: The City may attach to these conditions appendices containing
various forms and typical sample sheets for guidance and assistance to the Consultant in
the performance of the work. It is understood, however, that such forms and samples
may be modified, altered, and augmented from time to time by the City as occasions may
require. It is the responsibility of the Consultant to ensure that they have the latest
versions applicable to the Agreement.
19. EXTENSION OF TIME: The Consultant agrees to prosecute the work
continuously and diligently and no charges or claims for damages shall be made by the
Consultant for delays or hindrances, from any cause whatsoever, during the progress of
any portion of services specified in the Agreement. Such delays or hindrances, if any,
may be compensated for by an extension of time for such reasonable period as the City
may decide. Time extensions shall be granted by amendment, only for excusable delays,
such as delays beyond the control of the Consultant and without the fault or negligence
of the Consultant.
20. FAILURE TO COMPLY WITH TIME SCHEDULE: It is mutually
understood and agreed to, that neither Party hereto shall be held responsible for delay in
performing the work encompassed herein, when such delay is due to unforeseeable
causes such as acts of God, or a public enemy, fire, strikes, floods, or legal acts of public
authorities. In the event that any such causes for delay are of such magnitude as to
prevent the complete performance of the Agreement within two (2) years of the
originally scheduled completion date, either Party may by written notice request to
amend or terminate the Agreement.
21. CITY'S OPTION TO TERMINATE: The Agreement may be terminated in
accordance with the following provisions, which are not exclusive:
1. Breach of Agreement. Administrative remedies - the City may terminate
this Agreement due to a breach by Consultant. Termination for breach of
Agreement will be without further compensation to the Consultant.
2. Termination for Cause. The City may, upon written notice to the
Consultant, terminate the Agreement, as of a date to be specified by the
City, if the Consultant fails to complete the designated work to the
satisfaction of the City, within the time schedule agreed upon. The
Consultant shall be compensated on the basis of the work performed and
accepted by the City at the date of final acceptance of the Work.
3. Termination for Convenience. In addition to its rights and options to
terminate this Agreement as provided herein, the City may, at any time
prior to completion of services specified under the Agreement, terminate
the Agreement by submitting written notice to Consultant, within not less
than fifteen (15) days prior to the termination date, via certified or
registered mail, of its intention to do so. If the termination is for the City’s
convenience, payment to the Consultant will be made promptly for the
amount of any fees earned to the date of the notice of termination, less any
payments previously made. However, if a notice of termination is given to
a Consultant prior to completion of twenty (20) percent of the estimated
services, as set forth in the approved Work Schedule and Progress Report,
the Consultant will be reimbursed for that portion of any reasonable and
necessary expenses incurred to date of the notice of termination, that are in
excess of the amount earned under its approved fee to the date of said
termination. Such requests for reimbursement shall be supported with
factual data and shall be subject to the City’s approval. The Consultant
shall make no claim for additional compensation against the City by
reason of such termination.
4. Contract Disputes. In the event of a dispute between the parties to this
agreement each party will continue to perform its obligations unless
the Agreement is terminated in accordance with these terms.
22. ACKNOWLEDGEMENTS: Acknowledgment of the City’s support must be
included in any and all publications, renderings and project publicity, including
audio/visual materials developed under this Agreement.
23. RESPONSIBILITY FOR SUPERVISION: The Consultant shall assume primary
responsibility for general supervision of Consultant employees and their sub-consultants
for all work performed under the Agreement and shall be solely responsible for all
procedures, methods of analysis, interpretation, conclusions and contents of work
performed under the Agreement. The Consultant shall be responsible to the City for all
acts or omissions of its subcontractors and any other person performing work under this
Agreement.
24. PERFORMANCE IN ACCORD WITH PROFESSIONAL STANDARDS:
Consultant shall perform the Work in the best and most workmanlike manner consistent
with professional standards. If any of the Work is rejected by the City as failing to meet
professional standards, Consultant will remove and replace the defective portions to the
satisfaction and approval of the City, at the cost and expense of Consultant.
25. UTILITIES: Whenever a facility or component of a private, public, or
cooperatively- owned utility will be affected by any proposed construction, the Consultant
will counsel with the City, plus achieve any necessary contacts and discussions with the
affected owners, regarding any requirement necessary for revisions of facilities or existing
installations, both above and below ground. Any such installations must be completely and
accurately exhibited on any detail sheets or plans. The Consultant shall inform the City, in
writing, of any such contacts and the results thereof.
26. PUBLIC RELATIONS: Whenever it is necessary to perform work in the field,
particularly with respect to reconnaissance, the Consultant will endeavor to maintain
good relations with the public and any affected property owners. Personnel employed by
or representing the Consultant shall conduct themselves with propriety. The Consultant
agrees to inform property owners and/or tenants, in a timely manner, if there is need for
entering upon private property as an agent of the City, in accordance with 19 V.S.A. § 35
and §.503, to accomplish the work under the Agreement. The Consultant agrees that any
work will be done with minimum damage to the land and disturbance to the owner.
Upon request of the Consultant, the City shall furnish a letter of introduction to property
owners soliciting their cooperation and explaining that the Consultant is acting as an
agent of the City.
27. INSPECTION OF WORK: The City shall, at all times, have access to the
Consultant’s work for the purposes of inspection, accounting, and auditing, and the
Consultant shall provide whatever access is considered necessary to accomplish such
inspections. At any time, the Consultant shall permit the City or representative for the City
the opportunity to inspect any plans, drawings, estimates, specifications, or other materials
prepared or undertaken by the Consultant pursuant to the Agreement.
Conferences, visits to a site, or an inspection of the work, may be held at the request of any
involved party or by representatives of the City.
28. RETURN OF MATERIALS: Consultant agrees that at the expiration or
termination of this Agreement, it shall return to City all materials provided to it during its
engagement on behalf of City.
29. PLANS, RECORDS, AND AVAILABLE DATA: The City agrees to make
available, at no charge, for the Consultant’s use all available data related to the
Agreement including any preliminary plans, maps, drawings, photographs, reports,
traffic data, calculations, EDM, valuable papers, topographic survey, utility location
plats, or any other pertinent public records.
30. DESIGN STANDARDS: Unless otherwise specifically provided for in the
Agreement, or directed in writing, Consultant services, studies or designs, that include or
make reference to plans, specifications, special provisions, computations, estimates, or
other data shall be in conformance with applicable City, state, and federal specifications,
manuals, codes or regulations, including supplements to or revisions thereof, adopted
prior to or during the is responsible to identify and follow any course of direction
provided by the City.
31. REVIEWS AND ACCEPTANCES: All preliminary and detailed designs, plans,
specifications, estimates or other documents prepared by the Consultant, shall be subject
to review and endorsement by the City.
Approval for any inspections or sequences of progress of work shall be documented by
letters, memoranda or other appropriate written means.
A frequency for formal reviews shall be set forth in the Agreement. Informal reviews,
conducted by the City will be performed as deemed necessary. The Consultant shall
respond to all official comments regardless of their source. The Consultant shall supply
the City with written copies of all correspondence relating to formal and informal
reviews.
No acceptance shall relieve a Consultant of their professional obligation to correct any
defects or errors in their work at their own expense.
32. PAYMENT PROCEDURES: The City shall pay, or cause to be paid, to the
Consultant or the Consultant’s legal representative payments in accordance with the
Agreement. All payments will be made in reliance upon the accuracy of all representations
made by the Consultant, whether in invoices, progress reports, emails, or other proof of
work. When applicable, for the type of payment specified in the Agreement, the progress
report shall summarize actual costs and any earned portion of fixed fee.
All invoices and correspondence shall indicate the applicable project name, project number
and the Agreement number. When relevant, the invoice shall further be broken down in
detail between projects.
When applicable, for the type of payment specified in the Agreement, expenses for meals
and travel shall be limited to the current approved in-state rates, as determined by the
State of Vermont’s labor contract, and need not be receipted. All other expenses are subject
to approval by the City and must be accompanied with documentation to substantiate their
charges.
No approval given or payment made under an agreement, shall be conclusive evidence of
the performance of said agreement, either wholly or in part thereof, and no payment shall be
construed to be acceptance of defective work or improper materials.
The City agrees to pay the Consultant and the Consultant agrees to accept, as full
compensation, for performance of all services rendered and expenses incurred, the fee
specified in the Agreement.
Upon completion of all services covered under the Agreement and payment of the agreed
upon fee, the Agreement with its mutual obligations shall end.
33. PAYMENT FOR EXTRA WORK, ADDITIONAL SERVICES OR
CHANGES: The City may, upon written notice, and without invalidating the
Agreement, require changes resulting from revision or abandonment of work already
performed by the Consultant or changes in the scope of work.
The value of such changes, to the extent not reflected in other payments to the Consultant,
shall be incorporated in an amendment and be determined by mutual agreement. Any
adjustments of this nature shall be executed under the appropriate fee established in the
Agreement, based on the adjusted quantity of work.
No changes, for which additional fee payment is claimed, shall be made unless pursuant to
a written order from the City, and no claim for payment shall be valid unless so ordered.
The Consultant agrees to maintain complete and accurate records, in a form satisfactory to
the City for all time devoted directly to same by Consultant employees. The City reserves
the right to audit the records of the Consultant related to any extra work or additional
services. Any such services rendered shall be subject, in all other respects, to the terms of
the Agreement. When changes are so ordered, no additional work shall be performed by
the Consultant until an Agreement amendment has been fully executed, unless written
notice to proceed is issued by the City. Any claim for extension of time that may be
necessitated as a result of extra work or additional services and changes shall be
given consideration and evaluated insofar as it directly relates to the change.
34. CONFLICT OF INTEREST: The Consultant shall disclose in writing to the
City any actual or potential conflicts of interest or any appearance of a conflict of
interest by the Consultant, its employees or agents, or its subcontractors, if any.
35. NO GIFTS OR GRATUITIES: The Consultant shall not make any payment or
gift or donation of substantial value to any elected official, officer, employee, or agent
of the City during the term of this Agreement.
36. ACCEPTANCE OF FINAL PAYMENT; RELEASE: Consultant’s acceptance
of the final payment shall be a release in full of all claims against the City or its agents
arising out of or by reason of the Work.
IN WITNESS WHEREOF in Burlington, Vermont this ____ day of ___________,
2019.
VENDOR CITY OF BURLINGTON
________________________________ ______________________
Duly Authorized Duly Authorized
Attachment C
CITY OF BURLINGTON
BUSINESS ASSOCIATE ADDENDUM
This Business Associate Addendum (“Addendum”) supplements and is made a part of the
contract (“Contract”) by and between the City of Burlington, Vermont (“Covered
Entity”) and [Business Associate] (“Business Associate”), dated
. This Addendum is effective as of (the “Addendum
Effective Date”). This Addendum shall have a term equal to the term of the Contract (as
such contract may be amended, extended, renewed, renegotiated or replaced with a
contract with an extended term) unless terminated earlier as provided for in Section 3
below.
RECITALS
A. Covered Entity wishes to disclose certain information to Business Associate
pursuant to the terms of the Contract, some of which may constitute Protected Health
Information (“PHI”) (defined below).
B. Covered Entity and Business Associate intend to protect the privacy and provide for
the security of PHI disclosed to Business Associate pursuant to the Contract in
compliance with the Health Insurance Portability and Accountability Act of 1996,
Public Law 104-191 (“HIPAA”), the Health Information Technology for Economic
and Clinical Health Act, Public Law 111-005 (the “HITECH Act”), and regulations
promulgated thereunder by the U.S. Department of Health and Human Services (the
“HIPAA Regulations”), and other applicable laws.
C. As part of the HIPAA Regulations, the Privacy Rule and the Security Rule (defined
below) require Covered Entity to enter into a contract containing specific
requirements with Business Associate prior to the disclosure of PHI, as set forth in,
but not limited to, Title 45, Sections 164.314(a), 164.502(e) and 164.504(e) of the
Code of Federal Regulations (“C.F.R.”) and contained in this Addendum.
D. Federal regulations also protect the confidentiality of alcohol and drug abuse patient
records. To the extent that Covered Entity is a “program” as defined in 42 C.F.R. §
2.11, Business Associate shall be considered a “qualified service organization” and it
shall be obligated to comply with the requirements of 42 C.F.R. part 2.
AGREEMENT
In consideration of the mutual promises below and the exchange of information pursuant
to this Addendum, the parties agree as follows:
1. Definitions
a. Breach shall have the meaning given to such term under 42 U.S.C.
Section 17921 and 45 C.F.R. Section 164.404
b. Business Associate shall have the meaning given to such term under
the Privacy Rule, the Security Rule, and the HITECH Act, including,
but not limited to, 42 U.S.C. Section 17938 and 45 C.F.R. Section
160.103.
c. Covered Entity shall have the meaning given to such term under the
Privacy Rule and the Security Rule, including, but not limited to, 45
C.F.R. Section 160.103.
d. Data Aggregation shall have the meaning given to such term under
the Privacy Rule, including, but not limited to, 45 C.F.R. Section
164.501.
e. Designated Record Set shall have the meaning given to such term
under the Privacy Rule, including, but not limited to, 45 C.F.R.
Section 164.501.
f. Electronic Health Record shall have the meaning given to such term
in the HITECT Act, including, but not limited to, 42 U.S.C. Section
17921.
g. Electronic Protected Health Information shall mean Protected
Health Information that is maintained in or transmitted by electronic
media.
h. Health Care Operations shall have the meaning given to such term
under the Privacy Rule, including, but not limited to, 45 C.F.R.
Section 164.501.
i. Privacy Rule shall mean the HIPAA Regulation that is codified at 45
C.F.R. Parts 160 and 164, Subparts A and E.
j. Program shall have the meaning given to such term by 42 C.F.R
Section 2.11.
k. Protected Health Information or PHI shall mean any information,
whether oral or recorded in any form or medium: (i) that relates to the
past, present or future physical or mental condition of an individual;
the provision of health care to an individual; or the past, present or
future payment for the provision of health care to an individual; and
(ii) that identifies the individual or with respect to which there is a
reasonable basis to believe the information can be used to identify the
individual, and shall have the meaning given to such term under the
Privacy Rule, including, but not limited to, 45 C.F.R. Section 160.103.
Protected Health Information includes Electronic Protected Health
Information.
l. Protected Information shall mean PHI provided by Covered Entity to
Business Associate or created or received by Business Associate on
Covered Entity’s behalf.
m. Qualified service organization shall have the meaning given to such
term by 42 C.F.R. Section 2.11.
n. Security Rule shall mean the HIPAA Regulation that is codified at 45
C.F.R. Parts 160 and 164, Subparts A and C.
o. Unsecured PHI shall have the meaning given to such term under the
HITECH Act and any guidance issued pursuant to such Act including,
but not limited to, 42 U.S.C. Section 17932(h).
2. Obligations of Business Associate
a. Special Obligations Related to Drug and Alcohol Treatment
Records. To the extent that Covered Entity is a Program and Business
Associate is a qualified service organization, Business Associate
acknowledges that in receiving, storing, processing or otherwise
dealing with any patient records from the Covered Entity it is fully
bound by the provisions of 42 C.F.R. part 2 and if necessary, Business
Associate will resist in judicial proceedings any efforts to obtain
access to patient records except as permitted by these regulations.
b. Permitted Uses. Business Associate shall not use Protected
Information except for the purpose of performing Business Associate’s
obligations under the Contract and as permitted under the Contract and
Addendum. Further, Business Associate shall not use Protected
Information in any manner that would constitute a violation of the
Privacy Rule or the HITECH Act if so used by Covered Entity.
However, Business Associate may use Protected Information (i) for
the proper management and administration of Business Associate, (ii)
to carry out the legal responsibilities of Business Associate, (iii) as
required by law, or (iv) for Data Aggregation purposes for the Health
Care Operations of Covered Entity [45 C.F.R. Sections
164.504(e)(2)(i), 164.504(e)(2)(ii)(A) and 164.504(e)(4)(i)].
c. Permitted Disclosures. Business Associate shall not disclose
Protected Information except for the purpose of performing Business
Associate’s obligations under the Contract and as permitted under the
Contract and Addendum. Business Associate shall not disclose
Protected Information in any manner that would constitute a violation
of the Privacy Rule or the HITECH Act if so disclosed by Covered
Entity. However, Business Associate may disclose Protected
Information (i) for the proper management and administration of
Business Associate; (ii) to carry out the legal responsibilities of
Business Associate; (iii) as required by law; or (iv) for Data
Aggregation purposes for the Health Care Operations of Covered
Entity. If Business Associate discloses Protected Information to a
third party, Business Associate must obtain, prior to making any such
disclosure, (i) reasonable written assurances from such third party that
such Protected Information will be held confidential as provided
pursuant to this Addendum and only disclosed as required by law or
for the purposes for which it was disclosed to such third party; and (ii)
a written agreement from such third party to immediately notify
Business Associate of any breaches of confidentiality of the Protected
Information, to the extent it has obtained knowledge of such breach
[42 U.S.C. Section 17932; 45 C.F.R. Sections 164.504(e)(2)(i),
164.504(e)(2)(ii)(A), 164.504(e)(4)(i) and 164.504(e)(4)(ii)].
d. Prohibited Uses and Disclosures. Business Associate shall not use or
disclose Protected Information for fund-raising or marketing purposes.
Business Associate shall not disclose Protected Information to a health
plan for payment or health care operation purposes if the patient has
requested this special restriction, and has paid out of pocket in full for
the health care item or services to which the PHI solely relates [42
U.S.C. Section 17935(a)]. Business Associate shall not directly or
indirectly receive remuneration in exchange for Protected Information,
except with the prior written consent of Covered Entity and as
permitted by the HITECH Act [42 U.S.C. Section 17935(d)(2)];
however, this prohibition shall not affect payment by Covered Entity
to Business Associate for services provided pursuant to the Contract.
e. Appropriate Safeguards. Business Associate shall implement
appropriate safeguards as are necessary to prevent the use or disclosure
of Protected Information otherwise than as permitted by the Contract
or Addendum, including, but not limited to, administrative, physical
and technical safeguards that reasonably and appropriately protect the
confidentiality, integrity and availability of the Protected Information,
in accordance with 45 C.F.R. Sections 164.308, 164.310, and 164.312.
[45 C.F.R. Section 164.504(e)(2)(ii)(B); 45 C.F.R. Section
164.308(b)]. Business Associate shall comply with the policies and
procedures and documentation requirements of the HIPAA Security
Rule, including, but not limited to, 45 C.F.R. Section 164.316. [42
U.S.C. Section 17931].
f. Reporting of Improper Access, Use or Disclosure. Business
Associate shall report to Covered Entity in writing of any access, use
or disclosure of Protected Information not permitted by the Contract
and Addendum, and any Breach of Unsecured PHI of which it
becomes aware without unreasonable delay and in no case later than
twenty-four (24) hours after discovery [42 U.S.C. Section 17921; 45
C.F.R. Section 164.504(e)(2)(ii)(C); 45 C.F.R. Section 164.308(b)].
g. Business Associate’s Agents. Business Associate shall ensure that
any person who performs functions for or provides services to
Business Associate, including without limitation subcontractors, to
whom it provides Protected Information, agree in writing to the same
restrictions and conditions that apply to Business Associate with
respect to such PHI and implement the safeguards required by Section
2.e. above with respect to Electronic PHI [45 C.F.R. Section
164.504(e)(2)(ii)(D); 45 C.F.R. Section 164.308(b)]. Business
Associate shall implement and maintain sanctions against agents and
subcontractors that violate such restrictions and conditions and shall
mitigate the effects of any such violation (see 45 C.F.R. Sections
164.530(e)(1) and 164.530(f)). If the Business Associate knows of a
pattern of activity or practice of an agent or subcontractor that
constitutes a material breach or violation of such agent’s and
subcontractor’s obligations under the agreement referenced above, the
Business Associate must take reasonable steps to cure the breach or
end the violation [45 C.F.R. 164.504(e)(1)(iii)]. If the steps are
unsuccessful, the Business Associate must terminate the agreement or
other arrangement if feasible or, if termination is not feasible, report
the problem to the Secretary of DHHS [45 C.F.R. 164.504(e)(1)(iii)].
Business Associate shall provide written notice to such agent or
subcontractor and Covered Entity of any pattern of activity or practice
of such agent or subcontractor that Business Associate believes
constitutes a material breach or violation of such agent’s or
subcontractor’s obligations under the agreement or other arrangement
within five (5) days of discovery and shall meet with such agent or
subcontractor and Covered Entity to discuss and attempt to resolve the
problem as one of the reasonable steps to cure the breach or end the
violation.
h. Access to Protected Information. Business Associate shall make
Protected Information maintained by Business Associate or its agents
or subcontractors in Designated Record Sets available to Covered
Entity for inspection and copying within ten (10) days of a request by
Covered Entity to enable Covered Entity to fulfill its obligations under
the Privacy Rule, including, but not limited to, 45 C.F.R. Section
164.524 [45 C.F.R. Section 164.504(e)(2)(ii)(E)]. If Business
Associate maintains an Electronic Health Record, Business Associate
shall provide such information in electronic format to enable Covered
Entity to fulfill its obligations under the HITECH Act, including, but
not limited to, 42 U.S.C. Section 17935(e).
i. Amendment of PHI. Within ten (10) days of receipt of a request
from Covered Entity for an amendment of Protected Information or a
record about an individual contained in a Designated Record Set,
Business Associate or its agents or subcontracts shall make such
Protected Information available to Covered Entity for amendment and
incorporate any such amendment to enable Covered Entity to fulfill its
obligations under the Privacy Rule, including, but not limited to, 45
C.F.R. Section 164.526. If any individual requests an amendment of
Protected Information directly from Business Associate or its agents or
subcontractors, Business Associate must notify Covered Entity in
writing within five (5) days of the request. Any approval or denial of
amendment of Protected Information maintained by Business
Associate or its agents or subcontractors shall be the responsibility of
Covered Entity [45 C.F.R. Section 164.504(e)(2)(ii)(F)].
j. Accounting Rights. Promptly upon any disclosure of Protected
Information for which Covered Entity is required to account to an
individual, Business Associate and its agents or subcontractors shall
make available to Covered Entity the information required to provide
an accounting of disclosures to enable Covered Entity to fulfill its
obligations under the Privacy Rule, including, but not limited to, 45
C.F.R. Section 164.528, and the HITECH Act, including, but not
limited to, 42 U.S.C. Section 17935(c), as determined by Covered
Entity. Business Associate agrees to implement a process that allows
for an accounting to be collected and maintained by Business
Associate and its agents or subcontractors for at least six (6) years
prior to the request. However, accounting of disclosures from an
Electronic Health Record for treatment, payment or health care
operations purposes are required to be collected and maintained for
only three (3) years prior to the request, and only to the extent that
Business Associate maintains an electronic health record and is subject
to this requirement. At a minimum, the information collected and
maintained shall include: (i) the date of disclosure; (ii) the name of the
entity or person who received Protected Information and, if know, the
address of the entity or person; (iii) a brief description of Protected
Information disclosed; and (iv) a brief statement of purpose of the
disclosure that reasonably informs the individual of the basis for the
disclosure, or a copy of the individual’s authorization; or a copy of the
written request for disclosure. In the event that the request for an
accounting is delivered directly to Business Associate or its agents or
subcontractors, Business Associate shall within five (5) days of a
request forward it to Covered Entity in writing. It shall be Covered
Entity’s responsibility to prepare and deliver any such accounting
requested. Business Associate shall not disclose any Protected
Information except as set forth in Section 2.c. of this Addendum [45
C.F.R. Sections 164.504(e)(2)(ii)(G) and 165.528]. The provisions of
this Section 2.j. shall survive the termination of this Agreement.
k. Business Associate Performance of Covered Entity Obligations. To the extent that Business Associate is to carry out Covered Entity’s
obligation under the Privacy Rule, Business Associate shall comply
with the requirements of the Privacy Rule that apply to Covered Entity
in the performance of such obligations.
l. Governmental Access to Records. Business Associate shall make its
internal practices, books and records relating to the use and disclosure
of Protected Information available to Covered Entity and to the
Secretary of the U.S. Department of Health and Human Services (the
“Secretary”) for purposes of determining Business Associate’s
compliance with the Privacy Rule [45 C.F.R. Section
164.504(e)(2)(ii)(I)]. Business Associate shall provide to Covered
Entity a copy of any Protected Information that Business Associate
provides to the Secretary concurrently with providing such Protected
Information to the Secretary.
m. Minimum Necessary. Business Associate (and its agents or
subcontractors) shall request, use and disclose only the minimum
amount of Protected Information necessary to accomplish the purpose
of the request, use or disclosure, [42 U.S.C. Section 17935(b); 45
C.F.R. Section 164.514(d)(3)]. Business Associate understands and
agrees that the definition of “minimum necessary” is in flux and shall
keep itself informed of guidance issued by the Secretary with respect
to what constitutes “minimum necessary.”
n. Data Ownership. Business Associate acknowledges that Business
Associate has no ownership rights with respect to the Protected
Information.
o. Notification of Breach. During the term of the contract, Business
Associate shall notify Covered Entity within twenty-four (24) hours of
any suspected or actual breach of security, intrusion or unauthorized
use or disclosure of PHI of which Business Associate becomes aware
and/or any actual or suspected use or disclosure of data in violation of
any applicable federal or state laws or regulations, including without
limitation, (i) the Security Breach Notice Act, codified at Title Nine of
the Vermont Statutes, Chapter 62, Subchapter 2; (ii) the Document
Safe Destruction Act, codified at Title Nine of the Vermont Statutes,
Chapter 62, Subchapter 4; and (iii) the Social Security Number
Protection Act, codified at Title Nine of the Vermont Statutes, Chapter
62, Subchapter 3. Business Associate shall take (i) prompt corrective
action to cure any such deficiencies and (ii) any action pertaining to
such unauthorized disclosure required by applicable federal and state
laws and regulations.
p. Mitigation. Business Associate shall cooperate with Covered Entity
in investigating any suspected or actual breach of security, intrusion or
unauthorized use or disclosure of PHI, and implementing mitigating
measures deemed appropriate by Covered Entity, including notifying
affected individuals even if not required by law and providing affected
individuals with services to protect themselves against identity theft.
Business Associate shall bear the expense of any mitigating measures
Covered Entity deems appropriate.
q. Breach Pattern or Practice by Covered Entity. Pursuant to 42
U.S.C. Section 17934(b), if the Business Associate knows of a pattern
of activity or practice of Covered Entity that constitutes a material
breach or violation of Covered Entity’s obligations under the
Addendum, the Business Associate must take reasonable steps to cure
the breach or end the violation. If the steps are unsuccessful, the
Business Associate must terminate the Contract or other arrangement
if feasible or, if termination is not feasible, report the problem to the
Secretary. Business Associate shall provide written notice to Covered
Entity of any pattern of activity or practice of Covered Entity that
Business Associate believes constitutes a material breach or violation
of Covered Entity’s obligations under the Addendum within five (5)
days of discovery and shall meet with Covered Entity to discuss and
attempt to resolve the problem as one of the reasonable steps to cure
the breach or end the violation.
r. Audits, Inspection and Enforcement. Within ten (10) days of a
written request by Covered Entity, Business Associate and its agents
or subcontractors shall allow Covered Entity to conduct a reasonable
inspection of the facilities, systems, books, records, agreements,
policies and procedures relating to the use or disclosure of Protected
Information pursuant to this Addendum for the purpose of determining
whether Business Associate has complied with this Addendum;
provided, however, that (i) Business Associate and Covered Entity
shall mutually agree in advance upon the scope, timing and location o
if such an inspection; (ii) Covered Entity shall protect the
confidentiality of all confidential and proprietary information of
Business Associate to which Covered Entity has access during the
course of such inspection; and (iii) Covered Entity shall execute a
nondisclosure agreement, upon terms mutually agreed upon by the
parties, if requested by Business Associate. The fact that Covered
Entity inspects, or fails to inspect, or has the right to inspect, Business
Associate’s facilities, systems, books, records, agreements, policies
and procedures does not relieve Business Associate of its
responsibility to comply with this Addendum, nor does Covered
Entity’s (i) failure to detect or (ii) detection, but failure to notify
Business Associate or require Business Associate’s remediation of any
unsatisfactory practices, constitute acceptance of such practice or a
waiver of Covered Entity’s enforcement rights under the Contract or
Addendum, Business Associate shall notify Covered Entity within ten
(10) days of learning that Business Associate has become the subject
of an audit, compliance review, or complaint investigation by the
Office for Civil Rights.
3. Termination
a. Material Breach. A breach of Business Associate of any provision of
this Addendum, as determined by Covered Entity, shall constitute a
material breach of the Contract and shall provide grounds for
immediate termination of the Contract, any provision in the Contract
to the contrary notwithstanding. [45 C.F.R. Section
164.504(e)(2)(iii)]. Upon Covered Entity’s knowledge of a material
breach by Business Associate of HIPAA, the HITECH Act, the
HIPAA Regulations or other security or privacy laws, Covered Entity
shall either (i) provide an opportunity for Business Associate to cure
the breach or end the violation and terminate the Contract if Business
Associate does not cure the breach or end the violation within the time
specified by Covered Entity, (ii) immediately terminate the Contract if
Business Associate has breached a material term of this Addendum
and cure is not possible; or (iii) if neither termination nor cure are
feasible, Covered Entity shall report any HIPAA related violation to
the Secretary. Covered Entity may seek equitable relief to stop any
ongoing violation of the terms of this Addendum.
b. Judicial or Administrative Proceedings. Covered Entity may
terminate the Contract, effective immediately, if (i) Business Associate
is named as a defendant in a criminal proceeding for a violation of
HIPAA, the HITECH Act, the HIPAA Regulations or other security or
privacy laws or (ii) a finding or stipulation that the Business Associate
has violated any standard or requirement of HIPAA, the HITECH Act,
the HIPAA Regulations or other security or privacy laws is made in
any administrative or civil proceeding in which the party has been
joined.
c. Effect of Termination. Upon termination of the Contract for any
reason, Business Associate shall, at the option of Covered Entity,
return or destroy all Protected Information that Business Associate or
its agents or subcontractors still maintain in any form, and shall retain
no copies of such Protected Information. If return or destruction is not
feasible, as determined by Covered Entity, Business Associate shall
continue to extend the protections of Section 2 of this Addendum to
such information, and limit further use of such PHI to those purposes
that make the return or destruction of such PHI infeasible [45 C.F.R.
Section 164.504(e)(2)(ii)(J)]. If Covered Entity elects destruction of
the PHI, Business Associate shall certify in writing to Covered Entity
that such PHI has been destroyed. The obligations of Business
Associate under this Section 3.c. shall survive the termination of this
Addendum.
4. Indemnification
Business Associate shall defend, hold harmless and indemnify Covered Entity from and
against any claim, suit or action that arises or is alleged to have arisen as a result of the
negligence or willful misconduct of Business Associate or breach by Business Associate
of any term of this Addendum. Business Associate shall pay and be responsible for all
losses, damages, liabilities, fines, penalties, and expenses (including reasonable
attorneys’ fees) that arise out of or result from any such claim, suit or action.
5. Disclaimer
Covered Entity makes no warranty or representation that compliance by Business
Associate with this Addendum, HIPAA, the HITECH Act, or the HIPAA Regulations
will be adequate or satisfactory for Business Associate’s own purposes. Business
Associate is solely responsible for all decisions made by Business Associate regarding
the safeguarding of PHI.
6. Certification
To the extent that Covered Entity determines that examination is necessary to comply
with Covered Entity’s legal obligations pursuant to HIPAA relating to certification of its
security practices, Covered Entity or its authorized agents or contractors may, at Covered
Entity’s expense, examine Business Associate’s facilities, systems, procedures and
records as may be necessary for such agents or contractors to certify to Covered Entity
the extent to which Business Associate’s security safeguards comply with HIPAA, the
HITECH Act, the HIPAA Regulations or this Addendum.
7. Amendment
The parties acknowledge that state and federal laws relating to data security and privacy
are rapidly evolving and that amendment of the Contract or Addendum may be required
to provide for procedures to ensure compliance with such developments. The parties
specifically agree to take such action as is necessary to implement the standards and
requirements of HIPAA, the HITECH Act, the Privacy Rule, the Security Rule and other
applicable laws relating to the security or confidentiality of PHI. The parties understand
and agree that Covered Entity must receive satisfactory written assurance from Business
Associate that Business Associate will adequately safeguard all Protected Information.
Upon the request of either party, the other party agrees to promptly enter into
negotiations concerning the terms of an amendment to this Addendum embodying written
assurances consistent with the standards and requirements of HIPAA, the HITECH Act,
the Privacy Rule, the Security Rule or other applicable laws. Covered Entity may
terminate the Contract upon thirty (30) days written notice in the event (i) Business
Associate does not promptly enter into negotiations to amend the Contract or Addendum
when requested by Covered Entity pursuant to this Section, or (ii) Business Associate
does not enter into an amendment to the Contract or Addendum providing assurances
regarding the safeguarding of PHI that Covered Entity, in its sole discretion, deems
sufficient to satisfy the standards and requirements of applicable laws.
8. Assistance in Litigation or Administrative Proceedings
Business Associate shall make itself, and any subcontractors, employees or agents
assisting Business Associate in the performance of its obligations under the Contract or
Addendum, available to Covered Entity, at no cost to Covered Entity, to testify as
witnesses, or otherwise, in the event of litigation or administrative proceedings being
commenced against Covered Entity, its directors, officers or employees based upon a
claimed violation of HIPAA, the HITECH Act, the Privacy Rule, the Security rule, or
other laws relating to security and privacy, except where Business Associate or its
subcontractor, employee or agent is a named adverse party.
9. No Third-Party Beneficiaries
Nothing express or implied in the Contract or Addendum is intended to confer, nor shall
anything herein confer, upon any person other than Covered Entity, Business Associate
and their respective successors or assigns, any rights, remedies, obligations or liabilities
whatsoever.
10. Effect on Contract
Except as specifically required to implement the purposes of this Addendum, or to the
extent inconsistent with this Addendum, all other terms of the Contract shall remain in
force and effect.
11. Notices
All notices to be delivered under this Addendum shall be in writing and shall be to the
following addresses:
To Covered Entity: [Insert Address]
To Business Associate: [Insert Address]
12. Interpretation
The provisions of this Addendum shall prevail over any provisions in the Contract that
may conflict or appear inconsistent with any provision in this Addendum. This
Addendum and the contract shall be interpreted as broadly as necessary to implement and
comply with HIPAA, the HITECH Act, the Privacy Rule and the Security Rule. The
parties agree that any ambiguity in this Addendum shall be resolved in favor of a
meaning that complies and is consistent with HIPAA, the HITECH Act, the Privacy Rule
and the Security Rule.
13. Miscellaneous
a. Entire Agreement. The parties acknowledge that this Addendum
represents the entire agreement and understanding of the parties with
reference to the subject matter of this Addendum. Each party
acknowledges that no other promises, representations or agreements,
written or verbal, have been made by the other party, its agents, employees
or legal representatives as an inducement for the execution of this
Addendum. The Addendum replaces all prior understandings and
agreements of the parties, written or oral, with respect to the subject matter
covered herein.
b. No Agency Between Parties. Nothing in this Addendum creates or is
intended to create an association, trust, partnership, joint venture or other
entity or similar legal relationship between the parties. No party is or shall
act as or be the agent or representative of any other party.
c. Validity. If any provision of the Addendum is determined to be
unenforceable or invalid, such determination will not affect the validity of
the other provisions contained in this Addendum. Failure to enforce any
provision of this Addendum does not affect the rights of the parties to
enforce such provision in another circumstance. Neither does it affect the
rights of the parties to enforce any other provision of the Addendum at any
time.
d. Assignment. The rights and duties of Business Associate and
Covered Entity under this Agreement shall not be assignable by either
party without the written consent of the other party.
e. Counterparts. This Addendum may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Remainder of page intentionally left blank. Signature page follows.
IN WITNESS WHEREOF, the parties hereto have duly executed this Addendum as of
the Addendum Effective Date.
COVERED ENTITY: BUSINESS ASSOCIATE:
CITY OF BURLINGTON [Name of Business Associate]
By: By:
Name: Name:
Title: Title:
Date: Date:
