Loading...
HomeMy WebLinkAboutContract 47898 PECEN, CITY SECRETARY LLrl JUN 112016 NO- OF FORT WORTH TY SECRETARY AGREEMENT This Agreement(this"Agreement'),dated as of April 5,2016(the"Effective Date',is between Integer Health Technologies,LLC,a Delaware limited liability company(the "Company'),and the City of Fort Worth(the"Client"). RECITALS A. The Company is a healthcare technology company that works with employers that self-insure their healthcare plans or workers' compensation programs. B. The Client is a self-insured employer and desires to engage the Company for a project concerning the provider panel under its workers' compensation program(the"Workers' Comp Program'). C. The Company recently completed a project for the Client under which the Company identified opportunities for savings under the Workers' Comp Program by using the ongoing services of the Company(the"Prior Proiect").The Client will pay the Company$5,000 for the Prior Project under the terms of the agreement concerning it. D. The Client has now requested the Company to perform the project described below, so the Company and the Client are entering into this Agreement setting out the terms and conditions of such engagement. AGREEMENT The Company and the Client(the"Parties")agree as follows: I. CURRENT PROJECT Section 1.1 Client's Immediate Need The Client has an immediate need to determine the quality of the providers in the panel for the Workers' Comp Program and has requested the Company to use its data analytics platform to do so(the"Current Project"). Section 1.2 Statement of Work. Attached to this Agreement is a Statement of Work (the"SoW') for the Current Project setting out the particulars for that project. The SoW is part of this Agreement. (a) Data. As soon as practicable after the Effective Date,the Client will deliver to the Company the medical and pharmacy claims data under its healthcare plans and Workers' Comp Program,along with its human resource records, in the formats specified by the Company for the period indicated in the SoW (collectively,the"Data"), including re-delivering in the specified formats any Data previously delivered in connection with the Prior Project. OFFICIAL RECORD 1 CITY SECRETARY FT. WORTH, TX (b) Deliverables. The Company will deliver to the Client the deliverables described in the SoW(the"Deliverables")on or about the date indicated in the SoW(the "Delivery Date"). (c) Payment The Client will pay the Company the amount stated in the SoW within five days after the Effective Date. The Client acknowledges that the Company is undertaking the Current Project as an accommodation to the Client at a price significantly below what the Company would otherwise charge. The Client will therefore act as a beta site and reference client for the Company,as well as support the Company and advocate its services within the Texas PRIMA organization(Texas Chapter of the Public Risk Management Association). (d) Execution of SoW. Simultaneously with the execution of this Agreement the Parties will execute the SoW. Section 1.3 Meeting. On the Delivery Date the appropriate representatives of each Party will meet to review the Deliverables. For any subsequent work or meetings to which the Company agrees,the Client will pay the Company at the hourly rate per person stated in the SoW. The Company will invoice the Client for any such hourly work on a monthly basis and the Client will pay such invoices within five days after the Company sends them. Section 1.4 No Unauthorized Use. The Client may only use the Deliverables to determine the quality of the providers in the panel for the Workers' Comp Program(the "Authorized Purpose")and not for any other purpose,including anything associated with its healthcare plans. Section 1.5 Confidentiality. The Deliverables will remain the exclusive property of the Company with the Client possessing the right to use them only for the Authorized Purpose. The Client will maintain the confidentiality of the Deliverables and undertake reasonable efforts to protect them.In addition,the Client will not disclose or give copies of the Deliverables to anyone,other than the employees and representatives of the Client who need to know such information in connection with the Authorized Purpose or as required by law. In any event,the Client will notify the Company in a timely matter of a request for information pursuant to Section 3.12. The Client will not be held liable for any disclosure that is done in accordance with state law or a court order. This provision shall survive the termination of this Agreement. Section 1.6 Algorithmic Analysis. The Company calculates the value of healthcare providers for specific health conditions,comparing the total costs for a clinical condition and its treatment(both the claims costs and the productivity costs,i.e. absenteeism)against the medical outcome attained(i.e.how long the employee took to return to work).The Client understands that this process is an algorithmic analysis of data and that such scoring does not assure a favorable result,a lack of complications,or a particular level of quality. Section 1.7 Warranty Disclaimer. The Company is providing the Deliverables"as is," without any warranty or condition of any kind,express or implied,statutory or otherwise. In addition,the Company disclaims any warranty of design, fitness for a particular purpose, 2 merchantability,or non-infringement,and the Company does not warrant that the Deliverables will be error free. Section 1.8 BA Agreement In connection with the Prior Project,the Client delivered to the Company certain medical and pharmacy claims data under its healthcare plans and the Workers' Comp Program and certain human resource records.This data contained protected health information("PHI")as defined in 45 CFR §160.103 (CFR means the Code of Federal Regulations)so the Parties entered into a Business Associate Agreement,dated as of December 1,2015 (the"BA Amment"),as contemplated by the Health Insurance Portability and Accountability Act("HIPAA')and its regulations. II. DATA Section 2.l Insurance. The Company will maintain the following insurance with a carrier rated at least"A"by A.M. Best,and deliver to the Client an insurance certificate showing the Client as an additional insured: (a)a commercial general liability policy with limits of at least $1 million per occurrence and$2 million in the aggregate, and(b)a technology errors and omissions liability policy with limits of at least$1 million per occurrence and$1 million in the aggregate(including cyber liability coverage). Section 2.2 BA Agreement The Parties confirm the application of the BA Agreement to the PHI contained in the Data provided under this Agreement.The BA Agreement will be interpreted consistently with the provisions of this Agreement. Section 2.3 Client Owns the Data. The Client represents that it owns the Data,and that the Data will not contain any disabling or malicious code,such as malware,time bombs, viruses,or worms. In addition,the Client represents that to the best of its knowledge the Data will be accurate and complete. (a) License The Client grants to the Company a perpetual, irrevocable, royalty free,and world-wide license to use the Data in connection with the Company's business so long as such use complies with the BA Agreement and Sections 1.8,2.2& 2.4 of this Agreement. (b) No Purge. The Client understands that the Data will become part of the Company's databases and will not be purged from those databases upon the completion of the Current Project, and that the Company may continue to use it subject to Section 2.4 and the BA Agreement. Section 2.4 Company Will Comply with HIPAA. To the extent that the Data includes PHI the Company represents and warrants that it will comply with all HIPAA requirements when handling such PHI. In addition,the Company will comply with all other applicable laws when handling the Data. Section 2.5 Data Aggregation. The Client understands that the Company will aggregate the Data with data from other sources and clients,and that the Company will provide 3 data aggregation services to its clients as contemplated under,or not prohibited by,the HIPAA rules,including 45 CFR§164.501 &45 CFR§164.504(e)(2)(i)(B). Section 2.6 New Data. The Company may create"New Data"by de-identifying the Data in accordance with 45 CFR §164.514 to the extent that it contains PHI. (a) Company's Property. The Company will absolutely and exclusively own the New Data,and the Client will not have any rights or responsibilities with respect to it. (b) Not Data. The New Data will not be considered to be Data for purposes of this Agreement or the BA Agreement. III. GENERAL Section 3.1 Amendment This Agreement may only be amended in a writing signed by both Parties. Section 3.2 Audit Rights. For one year after the Delivery Date the Client may audit the Company concerning the amounts paid under this Agreement. To invoke this audit provision, the Client must notify the Company before the expiration of such year of the Client's desire to conduct an audit,specifying in reasonable detail the requested records,which will be limited to only those records involving the Parties,and not any other persons. The Company will then make such records available at its offices during normal business hours. Such audit will be at the Client's sole expense and conducted in a manner that does not disrupt the Company's operations or access any information that is not relevant to this Agreement. Section 3.3 Counterparts. This Agreement may be executed in counterparts,each of which when so executed and delivered shall be considered an original, but such counterparts shall together constitute one and the same instrument and agreement. Any signature delivered by a Party by facsimile or other electronic transmission(including email transmission of a portable document file(pdf)or similar image)shall be deemed to be an original signature hereto. Section 3.4 Drafting. This Agreement will not be interpreted against a Party because such Party or its legal counsel drafted this Agreement or any provision in it.In addition,prior drafts of this Agreement will not be used when interpreting it. Section 3.5 Entire Agreement This Agreement constitutes the entire agreement and understanding between the Parties,and except as otherwise provided supersedes all prior agreements and understandings,both written and oral,with respect to the principal subject matter of this Agreement(Le.the Current Project),provided that the BA Agreement will remain in effect and be considered supplemental to this Agreement. Section 3.6 Expenses Each Party will bear its own expenses in connection with the negotiation,preparation,and performance of this Agreement. 4 Section 3.7 Governing Law. The laws of the State of Texas will govern this Agreement without regard to its conflicts of laws principles. Section 3.8 Headings. The headings in this Agreement are for convenience only and will not affect the meaning of this Agreement's provisions. Section 3.9 Indemnification & Damages. The concept of indemnification concerns a third party seeking a payment,and each Party,to the extent permissible at law,will defend and indemnify the other Party for any amounts that a third party claims are owed to it because of such Party's breach of this Agreement. The concept of damages concerns the monetary and equitable relief to which a Party is entitled from the other Party because of a breach of this Agreement. With respect to a claim for damages against a Party(but not indemnity)that such Party could cure in a reasonable period,such Party will be given the opportunity to cure, and if the Party does so,the damage claim will be absolved without further liability to such Party. If the claim is incapable of cure in a reasonable period or the Party fails to cure,then the damages will be limited to an amount equal to the total amount payable by the Client to the Company under this Agreement. Under no circumstances,however,will a Party be liable to the other Party for any consequential,exemplary,incidental,indirect, loss of profit,punitive,or special damages, or any interest on the amount of any such damages,whether foreseeable or unforeseeable,even if such Party was advised of the possibility of such damages. Section 3.10 Independent Contractor. The relationship between the Parties will be an independent contractor relationship.The Parties will not be considered to be partners,joint venturers,or otherwise participants in a separate enterprise,and neither Party may act as the agent or representative of the other Party or bind the other Party in any way. Section 3.11 Notices. All notices,consents,waivers,and other understandings under this Agreement must be in writing and will be considered delivered only on the day of actual receipt by a Party, unless such document is sent by registered mail,postage prepaid,to the Party's address given in the SoW(or such other address to which such Party has notified the other Party in accordance with this section to send such documents),in which case it will be considered delivered no later than three business days after it is mailed. Section 3.12 Public Information Act The Company understands that the Client is a public entity under the laws of the State of Texas and subject to various public information laws and regulations, including the Texas Public Information Act,Chapter 552 of the Texas Government Code(the"Act").The Company acknowledges that under the Act the following information may be subject to disclosure: (a)documents and data held by the Client,including information obtained from the Company,and(b)information held by the Company for or on behalf of the Client that relates to the transaction of the Client's business and to which the Client has a right of access. The confidentiality provisions of this Agreement will not prohibit any required disclosure under the Act,provided that the Client gives the Company reasonable advance notice of such disclosure and cooperates with the Company in any attempt to prevent it. Section 3.13 Sales Taxes. The amounts that the Client will pay to the Company are exclusive of any sales and use taxes and similar governmental charges.Accordingly,the Client 5 will pay any such taxes and charges in addition to the specified amounts in accordance with applicable law,which may require the Client to pay such taxes and charges to the Company as the collection agent for the government. Section 3.14 Venue. Any legal proceeding with respect to this Agreement may be brought only in a federal or Texas state court sitting in Tarrant County,Texas, and each Parry irrevocably submits to the exclusive jurisdiction of such courts. Section 3.15 Waivers. No provision of this Agreement will be considered waived unless such waiver is signed by the Party that benefits from the enforcement of such provision. In addition,any waiver or failure to enforce any provision will not affect a Party's rights to enforce such provision at a later time. There are no implied waivers under this Agreement, Each Parry has executed this Agreement below and delivered it as of the Effective Date. INTEGER HEALTH TECHNOLOGIES,LLC By: Name: Title: V test 44"k- Date 4"k-Date of Execution: MjU_7-'1.2.,bl(6 b F CITY OF FORT WORTH a S , qWSecretM By N e: Alanis Ti istant City M 1 Date of Execution: 0 � ENO.M&C REQUIRED APPROVEAPIPROVEG AS TO FOR D L GALITY: AITYTTORNEY 7 ul I I evirweu75 6 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX STATEMENT OF WORK This Statement of Work(this"SoW")is a statement of work under an Agreement(the "Agreement'),dated as of the date given below,between Integer Health Technologies,LLC(the "Company")and the Client named below.This SoW is governed by the Agreement, and all terns with initial capitalized letters not defined in this SoW have the meanings given to them in the Agreement. Client: City of Fort Worth Date of the Agreement: April 5,2016 Data—The Client Will Deliver to January 1, 2013—March 31, 2016 the Company the Data Covering the Indicated Period: Deliverables: Provider Score Cards • PCPs(Primary Care Physicians) • Non-Specialty Providers • Specialty Providers • Institutional Providers Disease Score Cards • Backs • Necks • Shoulders • Knees • Feet/Ankles • Arms/Elbows Provider Referral Patterns • Providers who refer to poor outcome providers • Providers to whom poor outcome providers refer Calculations by Employee • Temporary Income Benefits(TIES) • Disability Supplement Plan (DSP) • Limited duty hours and pgments Delivery Date: June 3,2016 Payment: $23,500 SoW—Page 1 Hourly Rate for Subsequent Work: $250 Client's Principal Contact Brian Dickerson (including phone#&email): Director of Human Resources (817)392-7783 brian.dickersonLfortworthtexas. ov Client's EIN: 75-6000528 Client's Address: City of Fort Worth 1000 Throckmorton Street Fort Worth,Texas 76102 Company's Principal Contact Scott Rolofl• (including phone#&email): President (817)849-9402 sroloff(cr?inte Terhealth.com Company's EIN: 47-4372472 Company's Address: Integer Health Technologies, LLC 9001 Airport Freeway Suite 830 Fort Worth,TX 76180 Other Terms: None Effective Date of this SoW: April 5,2016 SoW—Page 2 Each Party has executed this SoW below and delivered it as of the Effective Date of this Sow. INTEGER HEALTH TECHNOLOGIES,LLC By: ( ljtk--�— - Name: 1 Title: _ Date of Execution: h; 1-1,10%fa_ 8 $–i CITY OF FORT WORTH A0000000000-4 1 XP►� By. Nam : S Alams S6f t', m Title: Amiitant City er Date of Execution: APPROVED AS TO FORM D LEGALITY: fes. YATMRNEY -tui a v'" I rev,nu OFFICIAL RECORD SoW–Page 3 CITY SECRETARY FT. WORTH, TX INTEHEA-01 CBARTON ACORO` CERTIFICATE OF LIABILITY INSURANCE DATE 1 122131201b THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(les)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Brush Creek Partners LLC PHONE 523-2323 FAX ) (913)800-8249 4444 Broadway a No .,,:(816) ac,you ___ Kansas City,MO 64111 ADDRess:lnfo@brushkc.com W SURER(S)AFFORDING COVERAGE NAIC 0 INSURER A:CNA INSURED INSURER B Integer Health Technologies,LLC INSURER C: 9001 Airport Freeway Suite 830 INSURER D North Richland Hills,TX 76180 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDLSUBR TYPE OF INSURANCE P POLICY EXP LIMITS LTR POLICY NUMBER FOLIC YYW MMIDDIYYW A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE f 1,000,000 CLAIMS-MADE FkIOCCUR 6020730335 09/21/2015 09/21/2016 PREMISES Ea occurrence $ 300,00 MED EXP(Any one person) $ 10,000 PERSONAL&ADV INJURY $ 1,000,00 GENL AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,00 X POLICY❑PRO- JECT LOC PRODUCTS-COMP/OP AGG $ 2,000,00 OTHER: S AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ - 1,000,000 (Ea accident) A ANY AUTO 6020730335 09/21/2015 09/21/2016 BODILY INJURY(Per person) $ ALL OWNEDSCHEDULED BODILY INJURY(Per accident) $ AUTOSNN AUTOS ED FerenD MAGE $ X HIREDAUTOS X AUTOS S UMBRELLA LIAR HOCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED I J.RETENTION$ $ WORKERS COMPENSATION AND EMPLOYERS'LIABILITY STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE YIN N/A E.L.EACH ACCIDENT S OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E.L.DISEASE-EA EMPLOYE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT 1$ A Tech ESO6020848773 12/01/2015 09/21/2016 Per Occurence 1,000,000 A Tech ESO 6020848773 12/01/2015 09/21/2016 Aggregate 1,000,00 DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES(ACORD 101,Additional Remarks Schedule,may be aKachad If more apace Is required) City of Fort Worth is an Additional Insured with respect to liability. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CI of Fort Worth THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City ACCORDANCE WITH THE POLICY PROVISIONS. 1000 Throckmorton St Fort Worth,TX 76102-6312 AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD BUSINESS ASSOCIATE AGREEMENT This Business Associate Agreement ("Agreement") is entered into on this 1st day of December 2015 (the "Effective Date"), by and between the City of Fort Worth on behalf of itself and its group health and welfare plans (collectively the "Covered Entity") and Integer Health Technologies, LLC("Business Associate"). RECITALS• WHEREAS, Business Associate performs or assists in performing a function or activity on behalf of Covered Entity that involves the use and/or disclosure of the Covered Entity's"protected health information"(such information,as defined in 45 C.F.R. 160.103, as such provision is currently drafted and if applicable subsequently updated, amended, or revised;referred to herein as"Protected Health Information"or"PHI"); and WHEREAS, the parties desire to enter into this Business Associate Agreement to govern the use and/or disclosure of Protected Health Information as required by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Health Information Technology for Economic and Clinical Health Act("HITECH"), the Standards for Privacy of Individually Identifiable Health Information (the "Privacy Rule"), and the Security Standards for the Protection of Electronic Protected Health Information (the "Security Rule") promulgated thereunder(collectively,the"HIPAA Privacy Rules and/or Security Standards"). NOW,THEREFORE,the parties hereto agree as follows: 1. Definitions. When used in this Agreement and capitalized, the following terms have the following meanings: (a) "Breach" shall have the same meaning as the term `Breach" in 45 C.F.R. §164.402. (b) "Electronic Protected Health Information" or "ePHI" shall mean Protected Health Information transmitted by electronic media or maintained in electronic media. (c) "IndividuaP' shall have the same meaning as the term "Individual" in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g). (d) "Privacy Rule" shall mean the Standards for Privacy of Individual Identifiable Health Information as set forth at 45 C.F.R. Parts 160 and 164 Subparts A and E. (e) "Protected Health Information" or"PHI" shall have the same meaning as the term "protected health information" in 45 C.F.R. § 160.103, limited to such city or Fort Worth Business Associate Agreement Page i or9 information created or received by Business Associate from or on behalf of Covered Entity. (f) "Required by Laip" shall have the same meaning as the teen "required by law" in 45 C.P.R. § 164.103. (g) "Secretary" shall mean the Secretary of the Department of Health and Human Services or his or her designee. (h) "Security Lncident" shall mean any attempted or successful unauthorized access, use, disclosure, modification or destruction of information or systems operations in an electronic infornation system, as more fully described in 45 C.F.R. § 164.304. To the extent permitted under the HIPAA Privacy Rules and/or Security Standards, the term Security Incident will not include: (i) unsuccessful attempts to penetrate computer networks or servers, or (ii) immaterial incidents that occur on a routine basis, such as general"pinging"or"denial of service"attacks. (i) "Security Rude" shall mean the Standards for Security of PHI, including ePHI, as set forth at 45 C.F.R. Parts 160 and 164 Subparts A and C. (j) "Unsecured Protected Health Information" shall mean protected health information that is not rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified by the Secretary as defined in 45 C.F.R. § 164.402. Terms used but not defined in this Agreement shall have the same meaning as those terms in the HIPAA Privacy Rules and/or Security Standards. 2. Obligations and Activities of Business Associate Regarding PHI. (a) Business Associate agrees not to use or further disclose PHI other than as permitted or required by this Agreement or as Required by Law. (b) Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Agreement. (c) Business Associate agrees to ensure that any agents, including sub- contractors (excluding entities that are merely conduits), to whom it provides PHI agree to the same restrictions and conditions that apply to Business Associate with respect to such information. (d) Business Associate agrees to provide access, at the request of Covered Entity, and in a reasonable time and manner designated by Covered Entity, to PHI in a Designated Record Set that is not also in Covered Entity's possession, to Covered Entity in order for Covered Entity to meet the requirements under 45 C.F.R. § 164.524. City or Fort Worth Business Associate Agreement Page 2 ol'9 (e) Business Associate agrees to make any amendment to PHI in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R. § 164.526 in a reasonable time and manner designated by Covered Entity. (f) Business Associate agrees to make internal practices books and records relating to the use and disclosure of PHI available to the Secretary, in a reasonable time and manner as designated by the Covered Entity or Secretary, for purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule. Business Associate shall inunediately notify Covered Entity upon receipt or notice of any request by the Secretary to conduct an investigation with respect to PHI received from the Covered Entity. (g) Business Associate agrees to document any disclosures of PHI that are not excepted under 45 C.F.R. § 164.528(a)(1)as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. (h) Business Associate agrees to provide to Covered Entity or an Individual, in a time and manner designated by Covered Entity, information collected in accordance with paragraph (g) above, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. (i) Business Associate agrees to use or disclose PHI pursuant to the request of Covered Entity; provided, however, that Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by Covered Entity. 3. Permitted Uses and Disclosures of PHI by Business Associate. (a) Business Associate may use or disclose PHI to perform agreed upon functions, activities or services for, or on behalf of, Covered Entity so long as in accordance with the terms of this Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity. (b) Business Associate may use PHI for the proper management and administration of Business Associate and to carry out the legal responsibilities of Business Associate. (c) Business Associate may disclose PHI for the proper management and administration of Business Associate and to carry out the legal responsibilities of Business Associate if. (i) such disclosure is Required by Law,or (ii) Business Associate obtains reasonable assurances from the person City of Port Worth[rosiness Associate Agrecment Page 3 of 9 to whom the information is disclosed that such information will remain confidential and used or further disclosed only as Required by Law or for the purposes for which it was disclosed to the person, and the person agrees to notify Business Associate of any instances of which it is aware that the confidentiality of the information has been breached. (d) Business Associate shall limit the PHI to the extent practicable, to the limited data set or if needed by the Business Associate, to the minimum necessary to accomplish the intended purpose of such use, disclosure or request subject to exceptions set forth in the Privacy Rule. (e) Business Associate may use PHI to provide Data Aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B). To the extent permitted under the HIPAA Privacy Rules and/or Security Standards, Business Associate may make available such Data Aggregation services through web-based services. (f) Business Associate may de-identify PHI as permitted by 45 C.F.R. § 164.5,14,and use and benefit from such de-identified information. 4. Oblieations of Covered Entity Regarding PHI. (a) Covered Entity shall provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 C.F.R. § 164.520,as well as any changes to such notice. (b) Covered Entity shall provide Business Associate with any changes in, or revocation of, authorization by an Individual to use or disclose PHI, if such changes affect Business Associate's permitted or required uses and disclosures. (c) Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522, if such restrictions affect Business Associate's permitted or required uses and disclosures. (d) Covered Entity shall require all of its employees, agents and representatives to be appropriately informed of its legal obligations pursuant to this Agreement and the Privacy Rule and Security Standards required by HIPAA and will reasonably cooperate with Business Associate in the performance of the mutual obligations under this Agreement. 5. Security of Protected Health Information. (a) Business Associate represents that it has implemented policies and procedures to ensure that its receipt, maintenance, or transmission of all PHI, either electronic or otherwise, on behalf of Covered Entity complies with the applicable administrative, physical, and technical safeguards required protecting the City of fort Worth Business Associate Agreement Page 4 of 9 confidentiality, availability and integrity of PHI as required by the HIPAA Privacy Rules and/or Security Standards. (b) Business Associate agrees that it will ensure that agents or subcontractors agree to implement the applicable administrative, physical, and technical safeguards required to protect the confidentiality, availability and integrity of PHI as required by HIPAA Privacy Rules and/or Security Standards. (c) Business Associate agrees to report to Covered Entity any Security Incident of which it becomes aware. Business Associate agrees to report the Security Incident to the Covered Entity as soon as reasonably practicable, but not later than 10 business days from the date the Business Associate becomes aware of the incident. (d) Business Associate agrees to establish procedures to mitigate, to the extent possible, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of this Agreement. (e) Business Associate agrees to immediately notify Covered Entity upon discovery of any Breach of Unsecured Protected Health Information (as provided in 45 C.P.R. § 164.410) and provide to Covered Entity, to the extent available to Business Associate, all information required to permit Covered Entity to comply with the requirements of 45 C.F.R. Part 164 Subpart D. (f) Covered Entity agrees and understands that the Covered Entity is independently responsible for the security of all PHI in its possession (electronic or otherwise), including all PHI that it receives from outside sources including the Business Associate. 6. Term and Termination. (a) Term. This Agreement shall be effective as of the Effective Date and shall remain in effect until the Business Associate relationship with the Covered Entity is terminated in accordance with this Section 6 herein, and all PHI is returned, destroyed or is otherwise protected as set forth in Section 6(e). (b) Termination for Cause by Covered Entity. Upon Covered Entity's knowledge of a material breach by Business Associate, Covered Entity shall provide an opportunity for Business Associate to cure the breach. If Business Associate does not cure the breach within 30 days from the date that Covered Entity provides notice of such breach to Business Associate, Covered Entity shall have the right to immediately terminate this Agreement and any existing underlying services agreement between Covered Entity and Business Associate. (c) Terminatio: by Business Associate. This Agreement may be terminated by Business Associate upon 30 days prior written notice to Covered Entity in the event that Business Associate, acting in good faith, believes that the City of Fort Worth Business Associate Agrecment Page 5 of g requirements of any law, legislation, consent decree, judicial action, governmental regulation or agency opinion, enacted, issued, or otherwise effective after the date of this Agreement and applicable to PHI or to this Agreement,cannot be met by Business Associate in a commercially reasonable manner and without significant additional expense. (d) Termination for Convenience. Either party may terminate this Agreement for convenience, for any reason, upon sixty (60) days written notice to the other party. (e) Effect of Termination. Upon termination of this Agreement for any reason, at the request of Covered Entity, Business Associate shall return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behaif of Covered Entity. Business Associate shall not retain any copies of the PHI unless return or destruction is deemed infeasible. If the return or destruction of PHI is infeasible, Business Associate shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI. For purposes of illustration only and not to limit the set of circumstances that could potentially make return or destruction infeasible, it would be infeasible for Business Associate to return or destroy certain PHI that is part of work product that must be retained for document retention/archival purposes, as well as PHI that is stored as a result of backup e-mail systems that store e-mails for emergency backup purposes. 7. Amendment. The parties may agree to amend this Agreement from time to time in any other respect that they deem appropriate. This Agreement shall not be amended except by written instrument executed by the parties. 8. Indemnification. Business Associate shall indemnify and hold harmless Covered Entity from and against any and all costs, expenses, claims, demands, causes of action, damages, attorneys' fees and judgments that arise out of or that may be imposed upon, incurred by, or brought against Covered Entity to the extent directly resulting from a breach of this Agreement or any violation of the Privacy Rule or other applicable HIPAA regulations by Business Associate. The indemnification obligations provided for in this Section will commence on the effective date of this Agreement and will survive its termination. 9. Severability. The parties intend this Agreement to be enforced as written. However, (i) if any portion or provision of this Agreement is to any extent declared illegal or unenforceable by a duly authorized court having jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so City of Fort Worth Business Associate Agreement Page 6 of 9 declared illegal or unenforceable,will not be affected thereby, and each portion and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law; and (ii) if any provision, or part thereof, is held to be unenforceable because of the duration of such provision, the Covered Entity and the Business Associate agree that the court making such determination will have the power to modify such provision, and such modified provision will then be enforceable to the fullest extent permitted by law. 10. Notices. All notices, requests, consents and other communications hereunder will be in writing, will be addressed to the receiving party's address set forth below or to such other address as a party may designate by notice hereunder, and will be either(i)delivered by hand, (ii)made by facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered mail or certified mail,return receipt requested,postage prepaid. If to the Covered Entity: If to the Business Associate: Assistant City'Manager for HR President 1000 Throckmorton Integer Health Technologies, LLC Fort Worth,Texas 76102 9001 Airport Freeway Suite 830 with copy to: Fort Worth,Texas 76180 City Attorney's Office at same address 11. Regulatory References. A reference in this Agreement to a section in the Privacy Rule means the referenced section or its successor, and for which compliance is required. 12. Headings and Captions. The headings and captions of the various subdivisions of the Agreement are for convenience of reference only and will in no way modify or affect the meaning or construction of any of the terms or provisions hereof. 13. Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter set forth herein and supersedes all prior agreements, arrangements and communications,whether oral or written,pertaining to the subject matter hereof. 14. Binding Effect. The provisions of this Agreement shall be binding upon and shall inure to the benefit of both parties and their respective successors and assigns. City of Fort Worth Business Associnte Agreement Page 7 of 9 15. No Waiver of Rights. Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, will operate as a waiver of any such right, power or remedy of the party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, will preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto will not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement will entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent will be deemed to be or will constitute a waiver or consent with respect to any other terms or provisions of this Agreement,whether or not similar. Each such waiver or consent will be effective only in the specific instance and for the purpose for which it was given,and will not constitute a continuing waiver or consent. 16. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Texas. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, or attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. 17. Interpretation. It is the parties' intent to comply strictly with all applicable laws, including without limitation, HIPAA, state statutes, or regulations (collectively, the "Regulatory Laws"), in connection with this Agreement. In the event there shall be a change in the Regulatory Laws, or in the reasoned interpretation of any of the Regulatory Laws or the adoption of new federal or state legislation, any of which are reasonably likely to materially and adversely affect the manner in which either party may perform or be compensated under this Agreement (or any related agreement for services to which this Agreement pertains) or which shall make this Agreement(or such related agreement)unlawful, the parties shall immediately enter into good faith negotiations regarding a new arrangement or basis for compensation pursuant to this Agreement (or such related agreement) that complies with the law, regulation or policy and that approximates as closely as possible the economic position of the parties prior to the change. In addition, the parties hereto have negotiated and prepared the terms of this Agreement in good faith with the intent that each and every one of the terms, covenants and conditions herein be binding upon and inure to the benefit of the respective parties. City of(:ort Worth Business Associate Agreement Page 8 of 9 18. Review of Counsel. The parties acknowledge that each party and its counsel have had the opportunity to review and revise this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 19. Signature Authority. The person signing this Agreement hereby warrants that lie or she has the legal authority to execute this Agreement on behalf of his or her respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. IN WITNESS WHEREOF, the parties have executed this Business Associate Agreement as of the Effective Date. COVERED ENTITY: BUSINESS ASSOCIATE: By: By: Name: Susan Alanis Name: L�4�� Title: Assistant City Manager Title: l�S iGlQw� ATTEST: g �® 8� !Y w,i,o � a a ' y S retar ooV- APPROVED AS TO FORM AND LEGALITY: 7 Guillermo (Will) S. Trevino,Asst. City Attorney No M&C Required OFFICIAL RECORD " 'y SECRETARY 'FE WORTUP TX City of Fort Worth Business Associate Agreement Page 9 of 9