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HomeMy WebLinkAboutContract 48411 MY SECIMARY L C UUNTUACT 00b WORKERS' COMP AGREEMENT This Workers' Comp Agreement(this"Agreement'), dated as of December 1,2016(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 provides certain services to 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 to provide its services with respect to the Client's workers' compensation program(the "Workers' Comp Program'). C. The Company and the Client are therefore 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. WORKERS' COMP SERVICES Section 1.1 Services. During the term of this Agreement,the Company will give the Client access to an internet portal (the"Portal")that will provide reporting services with respect to the Workers' Comp Program(the"Workers' Comp Services"),primarily consisting of. (a) Providers. Identifying the high and low value physicians and other providers in the Client's workers' compensation network for various diagnostic conditions(e.g. back pain, carpal tunnel syndrome,etc.). (i) Rankings.Provider rankings(i.e. " Scores )will be based upon a provider's average risk adjusted cost per employee for the diagnostic condition in question. (ii) Cost. The cost will be the total of the medical and pharmacy claims and the productivity costs of the employee being absent from work because of the injury. (b) Savings Opportunities. Identifying the savings opportunities by diagnostic condition of moving employees from below average providers to average or high value Nps,! 21 2016 ones. 1 OFFICIAL.RECORD CITY SECRETARY wnpT4,TX Section 1.2 Monthly Payment On the first day of each month during the term of this Agreement the Client will pay the Company a monthly payment of$4,000 (the"Monthly Payment'). Section 1.3 Significant Discount The Client acknowledges that the Monthly Payment is a significant discount from what the Company would normally charge the Client because the Client will: (a) Beta Site. Act as a beta site for the Company's services; (6) Reference Client. Act as a reference client for the Company, including permitting the Company to list the Client as a client of the Company on its website and in its marketing materials; (c) Introductions. Provide the Company with introductions to the healthcare plan and workers' compensation executives at other governmental entities; and (rl) Promote. Promote the Company and its services at employee benefit and workers' compensation conferences and governmental association gatherings, including by sponsoring Company presentations at such events and providing testimonials. Section 1.4 No Unauthorized Use. The Client may only use the Portal and the Workers' Comp Services with respect to its Workers' Comp Program(the"Authorized Purpose") and not for any other purpose, including anything associated with its healthcare plans. In addition,upon the expiration or termination of this Agreement the Client will immediately cease using the Portal and destroy any printouts and electronic copies of reports and other deliverables from the Portal or the Workers' Comp Services,maintaining only such copies for archival purposes only as are required to comply with the minimum state and local government statutes. Section 1.5 Exclusive Property of the Company. The Portal and all information and deliverables in connection with the Portal and the Workers' Comp Services will remain the absolute and exclusive property of the Company with the Client possessing the right to use them only for the Authorized Purpose during the term of this Agreement. Section 1.6 Algorithmic Analysis. The Client understands that the Company's ranking of physicians and other providers is an algorithmic analysis of data and that such scoring does not assure a favorable result,a lack of complications, a particular level of quality, or any savings. Section 1.7 Warranty Disclaimer. The Company is providing the Portal,the Workers' Comp Services, and any information and deliverables with respect to the Portal and such services "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, merchantability, or non-infringement, and the Company does not warrant that the Portal, the 2 Workers' Comp Services, or any information or deliverables with respect to the Portal or such services will be uninterrupted or error free. 11. DATA Section 2.1 Data Delivery. The Client will provide the medical and pharmacy claims under both its healthcare plans and Workers' Comp Program, along with its human resource records, in the formats specified by the Company for the periods indicated below(collectively, the "Data"): (a) Prior Period As soon as practicable after the Effective Date the Client will deliver the Data for the period beginning January 1, 2011 and ending as close to the Effective Date as possible. In connection with certain prior projects the Client has already delivered some of this Data to the Company, and unless the Company requests re- delivery the Client will not be required to re-deliver previously delivered Data. (b) Monthly. On or about the first day of each month during the term of this Agreement the Client will deliver the Data for the previous month. In such first monthly delivery the Client will also deliver the Data for the stub period beginning when the above prior period Data delivery ended through the day immediately preceding the Effective Date. (c) TPA &PBM. The Client may arrange for the third party administrator ("TPA")handling its medical claims and the pharmacy benefit manager("PBM") handling its pharmacy claims to provide those claims in the prescribed formats directly to the Company. Section 2.2 BAA. The Parties acknowledge that the Data contains protected health information("PHI") as defined in 45 CFR§160.103 (CFR means the Code of Federal Regulations). In connection with certain prior projects the Parties entered into a Business Associate Agreement, dated as of December 1,2015 (the"BAA"),as contemplated by the Health Insurance Portability and Accountability Act("HIPAA") and its regulations. The Parties confirm the application of the BAA to the PHI contained in the Data provided under this Agreement and agree that the BAA will be interpreted consistently with the provisions of this Agreement. Section 2.3 Client Owns the Data. The Client represents and warrants 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 BAA. 3 (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 expiration or termination of this Agreement,and that the Company may continue to use it subject to the BAA(and if the BAA has been terminated,consistent with the provisions of the BAA at the time of such termination). 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 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 lunits 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 2.6 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 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). Sectio: 2.7 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 BAA. Section 2.8 Provider List. As soon as practicable after the Effective Date the Client will deliver to the Company the list of providers in its workers' compensation network(i.e. 504 network) in such format and detail as the Company may request. The Client will then send the Company any updates to that list in the prescribed format along with its monthly Data feeds. III. CONFIDENTIALITY Section 3.1 Confidentiality of Reports& QScores. The Client will maintain the confidentiality of all information disclosed on the Portal and in connection with the Workers' Comp Services,including the Portal reports and the QScores, and undertake reasonable efforts to protect such information. In addition,the Client will not disclose or give copies of these items to anyone, other than the employees and representatives of the Client who need to know such 4 information in connection with the Workers' Comp Program, or as required by law or court order. Section 3.2 Public Information Act. The Company understands that the CIient 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"Public Information Act"). The Company acknowledges that under the Public Information 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 Client's above confidentiality obligations will not prohibit any required disclosure under the Public Information 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. Each Party acknowledges that a determination as to the public nature of any document will be made by the Office of the Texas Attorney General or a court of competent jurisdiction, and that neither Party will be liable for complying with such an administrative ruling or court order. Section 3.3 Defend Trade Secrets Act. Each Party understands that under the Defend Trade Secrets Act such Party will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. A Party will also not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding,if such filing is made under seal. In addition,if a Party files a lawsuit for retaliation against the other Party for such Party's reporting of a suspected violation of law, such Party may disclose the trade secret to its attorney and use the trade secret information in the court proceeding, so long as such Party files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to a court order. IV. TERM Section 4.1 One Year Term. The term of this Agreement will be one year, beginning on the Effective Date and ending on the day immediately preceding the first anniversary of such date. Section 4.2 Termination for Convenience. Either Party may terminate this Agreement "without cause"upon 60 days' notice. Section 4.3 Termination for Cause. A Party may terminate this Agreement for "cause,"as described below. Termination of the BAA for convenience or any other reason will not terminate this Agreement,notwithstanding any provision of the BAA to the contrary. 5 (a) Material Breach. A Party may seek to terminate this Agreement if the other Party materially breaches this Agreement, and the Party seeking termination notifies the breaching Party of its intent to terminate,specifying in reasonable detail the specifics of the breach. If the breach is capable of being cured,the breaching Party will have one month to cure it. If the breaching Party cures the breach within such month, then this Agreement will not terminate. If,on the other hand,the breaching Party does not cure the breach within such month,this Agreement will terminate at the end of that month. For example,if a Party gave notice on March 15°i,the other Party would have until April 10'to cure the breach,and if it did not do so then this Agreement would terminate at the close of business on April 10'.If the breach is incapable of cure, then this Agreement will terminate upon delivery of the termination notice. (G) Bankruptcy. A Party may terminate this Agreement if a Bankruptcy Event occurs with respect to the other Party, and the Party seeking termination notifies such other Party of its intent to terminate because of it. A`Bankruptcy Event"means: (i)the filing by a Party of a voluntary bankruptcy petition, (ii)the filing of an involuntary bankruptcy petition against a Party that the bankruptcy court does not dismiss within 30 days after it is filed, (iii)the assignment by a Party of all or most of its assets for the benefit of its creditors, or(iv)the appointment of a receiver or similar person over the assets or business of a Party. This Agreement will terminate upon delivery of this termination notice. Section 4.4 Non Appropriation of Funds. In the event that insufficient funds are appropriated by the Client in any fiscal period for payments due under this Agreement, the Client will notify the Company of such occurrence and this Agreement will terminate on the Iast day of the fiscal period for which appropriations were received without penalty or further expense to the Client of any kind whatsoever,except as to the portions of any such payments for which funds were appropriated. Section 4.5 Survival. Upon termination of this Agreement, whether by expiration of the term or early termination, the ongoing responsibilities of each Party will cease, although the provisions of this Agreement that by their terms or implication are intended to survive such termination will survive,including the following: (u) Payments. The Client will pay the Company any unpaid amounts owed at termination. (G) Audit Rights. The Client's audit rights will continue to apply for one year atter the termination. (c) Breaches. Each Party will remain liable for its breaches of this Agreement. (d) Confidentiality. The confidentiality obligations will survive. 6 (e) Data. The Client will continue to own the Data and the Company will continue to have the right to use the Data and rely upon the Client's representations and warranties concerning it. When using the Data,the Company will continue to comply with HIPAA and all other applicable law. (j) Indemnity& Damages. The indemnity, damages, and equitable relief provisions will survive. V. INDEMNITY& DAMAGES Section 5.1 Indemnification. 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. Section 5.2 Damages. The concept of damages concerns the monetary relief to which a Party is entitled from the other Party because of a breach of this Agreement.To the extent permissible at law, a Party may only seek damages from the other Party with respect to a material breach pursuant to which such Party has terminated this Agreement. A Party may not seek dainages with respect to any other breach(e.g. a material breach that was cured or an immaterial breach). (a) Limitation. Any damages under this Agreement will be limited to an amount equal to the total amount payable by the Client to the Company during the twelve months immediately preceding the breach. (b) No Consequential Damages. Under no circumstances 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 damages, whether foreseeable or unforeseeable,even if such Party was advised of the possibility of such damages. Section 5.3 Equitable Relief. Monetary damages alone will be inadequate to remedy any breach or threatened breach of certain provisions of this Agreement, such as the Client's confidentiality obligations. Accordingly, a Party may seek equitable relief in the form of an injunction from any court of competent jurisdiction to prevent the other Party's continued or threatened breach of such obligations,without requiring the Party seeking the injunction to post any bond. Such right to an injunction will be in addition to any damages that a Party may be awarded with respect to such breach or threatened breach. VI. GENERAL Section 6.1 Amendment. This Agreement may only be amended in a writing signed by both Parties. 7 Section 6.2 Audit Rights. For one year after the expiration or termination of this Agreement the Client may audit the Company concerning the amounts paid under this Agreement. The Client may invoke such audit provision only once in any twelve-month period. To invoke this audit provision,the Client must notify the Company 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 6.3 Counterparts. This Agreement may be executed in counterparts, and any signature delivered by facsimile or other electronic transmission(including email transmission of a portable document file(pdf) or similar image)will be considered an original signature. Section 6.4 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 6.5 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(i.e.the Workers' Comp Services that are the subject of this Agreement), provided that the BAA will remain in effect and be considered supplemental to this Agreement. Section 6.6 Expenses. Each Party will bear its own expenses in connection with the negotiation,preparation, and performance of this Agreement. Section 6.7 Force Majeure. Except for the obligation to pay money, a Parry's breach of this Agreement because of an act of God, act of government,civil commotion, cyber-attack, cyclone, earthquake, epidemic, explosion,fire, flood, hurricane, internet interruption or disconnection, labor strike,national emergency,power outage, quarantine,riot,terrorist attack, tornado,tropical storni,tsunami,volcanic eruption,or war will not give rise to a claim for damages by the other Party. A Party must cure any breach excused by this force majeure provision as soon as possible. Section 6.8 Governing Law The laws of the State of Texas will govern this Agreement without regard to its conflicts of laws principles. Section 6.9 Headings. The headings in this Agreement are for convenience only and will not affect the meaning of this Agreement's provisions. Section 6.14 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. 8 Section 6.11 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 on the signature page of this Agreement(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. Any notice to the Client must include a copy to the City Attorney's Office at the same address. Section 6.12 Sales Tax. The amounts that the Client will pay to the Company are exclusive of any applicable sales and use taxes and similar governmental charges. The Client represents and warrants that it is exempt from sales and use tax, and the Client will deliver a sales tax exemption to the Company. Section 6.13 Time of the Essence. Time is of the essence in the performance of this Agreement, and the dates,periods, and times specified in this Agreement. Section 6.14 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 Party irrevocably submits to the exclusive jurisdiction of such courts. Section 6.15 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. [SIGNATURES ON THE NEXT PAGE] 9 Each Party has executed this Agreement below and delivered it as of the Effective Date. INTEGER HEALTH TECHNOLOGIES,LLC By: Name: Scott Roloff Title: President Date of Execution:A0 QaWhk\(o Address,Email&EIN: 9001 Airport Freeway Suite 830 North Richland Hills,Texas 76180 Attn: Scott Roloff President sroloff t integerhealth.com EIN: 47-4372472 CITY OF FORT WORTH 1 I . e: �Sjis Tit istant City Ma ager Date of Execution: Address,Email&EIN: 1000 Throckmorton Street or IC1A L RECORD Fort Worth,Texas 76102 CITY 5ECRETARl( Attn: Brian Dickerson WORTR+TX Director of Human Resources brian.dickerson nfortworthtexas.goy i— - � cc: City Attorney's Office EIN: 75-6000528 ppoaoop� < 0o 00 6p ga f o o` 44-PPIROVWD —° g FORM AND LEGALITY. g At�es�o ' CU Ej.. r. -/LO