HomeMy WebLinkAboutContract 49819 . 4 SB)��
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CITY SECRETARY(j
217 N CONTRACT N0._ / l
Non4)isclosureAgreement I
This THIRD PARTY DISCLOSURE AGREFMF,NT("Agreement") is entered into by and between City of Port R
Worth ("Employer"), Holmes, Murphy and Associates, LLC ("Vendor'), Southwestern IIealth Resources
("Consultant")and United HealthCare Services,Inc.for itselrand its affiliated and associated companies ("United')
and will be effective on 8122/2017.For purposes of ibis Agreement,Vendor,Consullant and United shall be separately
referred to as "Contractor"and collectively referred to as "Contractors". Employer, Vendor,Consultant .and United.
may also individually.be referred to herein as a"Party"and may jointly be referred to together-as the"Parties,"These
parties acknowledge and agree as follows: t
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Purpose:Employer and United.entered into an administrative services agreement under which United.provides.claims
administration and other services for Employer's employee welfare benefit plan("Plan").Employer has authorized
United to provide claims administration and other services,including data use and reporting services,.for.Employees
employee welfare benefit plan("Plan").The services that United and Vendor provide to Employer shall collectively
be referred to in this Agreement as "Services".
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Confidential Information: Employer has requested that each Contractor.disclose to the other certain documents,
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statistical information and other informiation (including internal audit reports) which is commercially valuable,
confidential,proprietary,or trade secret("Proprietary Information")and also materials which may contain protected
health information.as defined under 45 C.F.R. Part 160("Protected Health Information"). For further clarification,
Proprietary Information shall include, but not necessarily be limited to United's contract reimbursement. terms
including data related to.allowable/cove.re.d,discount amounts or derivations of.Proprietary.Information shall include
financial provisions related to United's contracted healthcare(and pharmacy)providers CProviders")providers and
claims data from which those financial provisions can be derived. Proprietary Information and Protected Health
information shall.collectively be referred to in this Agreement as"Confidential Information". The Contractors have
agreed to disclose this.Confrdential Information subject to the terms of this Agreement,
Each Contractor shall use.Confidential information only as permitted by this Agreement.Contractors agree.that United k
bas.the right to review the terns of this Agreement at least once every year to ensure that the terms of data sharing .
do not conflict with UnitedIs internal data release policies,which may change from time to time,and the.Parties will
reasonably work to address any issues.
Vendor, Consultant and Employer acknowledge and agree that United's agreements with its network ofbealth care
providers("Provider Agreements")include varyi»g restrictions on United's disclosure of-Provider-specific pricing and
discount information(including allowable/covered and derivatives thereof)to any third parties,including, but not
limited to vendors and,as such,Confrdential.lnformation provided-to Vendor and/or Consultant under this Agreement
must not violate tate Provider Agreements.
Confidential Information shall not include information:(i)generally available to the public prior to or during the
time of the Services through authorized disclosure;(il)obtained from a Third Party(def tied as any entity.nota Party
to this Agreement)who is under no obligation to the disclosing Contractor not to disclose such information;or 0.
independently developed by Contractor.
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Systems Access:If United grants Vendor and/or Consultant the right to access the benefit administration systems that
United makes available to facilitate the transfer of Confidential information("Systems")the following conditions
apply:The Systems,and any documentatlon with respect to the Systems,shall be treated as Proprietary Information
as defined In this Agreement and subject to the same confidentiality restrictions contained heroin. This right is
nonexclusive and nontransferable,.and all rights,title and interest in the Systems remain United's.Vendor shrill not
share,,lease or otherwise transfer its right to access and use the Systems to any other.person or entity.
In accessing And using the Systems,Vendor and/or Consultant shall use commercially reasonable security measures,
including measures to protect:(a)the confidentiality of user identification and passwords and(b)data accessed through
the Systems from unauthorized access or damage,including damage by computer viruses.Vendor and/or Consultant
also agree to comply with our security measures which we notify you of.Vendor and/or Consultant will contact United
immediately if(a)any breach of the security procedures is suspected or has occurred and/or(b) an
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OFFICIAL RECORD
CITY SECRETARY
T.°h ORTHs TX
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employee no longer steeds Systems access duo to termination of employment, or otherwise, so that United may
deactivate the employee's identification number or password.
United reserves the right to terminate the Vendor's and/or Consultant's access at any time- System Access will
automatically terminate on the date Vendors and/or Consultant's business relationship with.Employer ends.Upon
termination of Systems access,Vendor and/or Consultant will cease all.useofthe Systems.
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Electronic Transmission: If Consultant and/or Vendor receives the Confidential Information from United 'via
electronic means such as FTP transmission,Consultant and Vendor shall use reasonable physical and software based
security measures,commonly used in the electronic data interchange field,to protect Confidential Information sent l
to, or received from, United. Vendor and Consultant shall implement and comply with, and shall.not attempt to s.
circumvent or bypass,Uitited's security procodw•es for the use of the electronic method of Confidential information
transmission.Vendor and Consultant shall notify United immediately if Vendor or Consultant is aware of any breach
of the security procedures, such as unauthorizeduse, or.if Vendor or Consultant suspects such a breach. United
reserves the right to terminate_electronic transmission immediately on the date United reasonably determines that r
Vendor or Consultant Inas breached,or allowed a breach o4 this provision of the Agreement.United also reserves the
right to change or upgrade its method of Confidential Information transmission with reasonable notice to Vendor or
Consultant.
Permitted Uses:Vendor,Consultant,United and Employer: (a)shall not use(deemed to include,but not be limited
to,using,exploiting,duplicating;recreating,modifying,decompiliug,disassembling,reverse engineering,translating..
creating derivative works, adding to a Contractor database,aggregating, benchmarking.or disclosing Confidential t:
Infonmation'to another person or permitting any other person to do so)Confidential Information except for purposes
of the Services and except as otherwise provided herein;(b)shall maintain the Confidential Information at a specific
location under the control of Contractor and take reasonable steps to safeguard the Confidential Information and to g
prevent unauthorized disclosure to thiel parties in violation of this Agreement; (c)shall limit use of Confidential
Information only to its:authorized employees who have a need to know for purposes ofthe.Services and who aro
bound by as strict of confidentiality standards.as set forth herein and apply the minimum necessary principles as
outlined under the Health Insurance .Portability and Accountability Act of 1996, as amended, to Proprietary
Information as well as confidential health 'information; (d)shall comply with all applicable laws and ragulations
governing the uses and.dJsclosuro.Qf.info..rrlt Ilion,_irtclrtdinglaut�tot�iiuitciLto I-UP.AA;_(e.)iludLuse-andscquire_its
employees to use,at least the same degree of care to protect the Confidential Information as is used with Contractor's
own proprietary and confidential information;(f)may release Confidential Information in response to a subpoena or "
other legal process to disclose Confrdcntial Information,after giving the disclosing Contractor reasonable prior notice
of such disclosure;and(g)shall take reasonable administrative physical and technical safeguards to protect any and
all Confidential Information from unauthorized use,access and disclosure.
Vendor;Consultant and Employer(a)shall not use Confidential Information:for the creation,operadomorcontribution
to the development of any cost or price 'transparency tool program that would enable Plan members to obtain
comparative cost and pricing information across providers in a service area for episodes of care, treatments and
procedures or for any similar program or to create, develop, design;: implement networks, including, but not
limited to Accountable Care Organizations(ACOs),Centers of Excellence(COEs),narrow or tiered networks; (b)
shall not aggregate or incorporate Confidential Information across multiple Employers or Plans without United's prior
written permission;(o)shall not disclose Confidential Information to any of Vendors and/or Consultant's affiliated
entities.for any use or purpose not directly related to.the Services, including but not limited to any use.or purpose
that might harm United's competitive position; (d)(or any of its [their]respective personnel) shall not
utilize Confidential Information; including any aggregate or de-identified data derived from such Confidential
Information,for its or his or her benefit,commercial or otherwise,or for the benefit ofany other person (including,
withoutlimitation,any of the subsidiaries or affiliates of Consultant.or Vendor),or to the detriment:ofUnited,except
as may be expressly subsequently authorized in writing and on terms and conditions deemed necessary by United,
including but not limited to having a separate confidentiality agreement in place with such affiliate or consultant and;
(e) shall not provide Proprietary Information to any third parties or Employer unless expressly agreed to in this t
Agreement or otherwise by United, Specifically, United's Proprietary Infornation related to allownblc%overed,or
discount amounts or derivations of cannot be used .for the purposes of building provider networks including
Accountable Care Organizations (ACOS), Centers of Excellence (COPS) provider contracts or other network
strategies.Additionally,Vendor and Consultant:shall not share or make directly available Provider '
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specific network discounts (including allowed/covered amounts or derivations thereof) with the Employer or any t
Third Party,however,Vendor and/or Consultant may use Proprietary Information to provide to Employer aggregated t
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information for benchmarking or normative reporting as part of the Services, provided however, any Proprietary i
Information contained in the benchmarking or nonnative reports, or contained in any databases to serve those
purposes, will be dc4dentified Willi respect to.PHI as well as any of United's provider discount information(e.g.,
information cannot reasonably uniquely identify either alone or in collaboration Willi other information: United,
Providers or other carriers;and any negotiated payment arrangements(including discounts allowed/covered amount,
or derivations thereof),between United and a specific Provider orcustomer).
Use of Pharmacy Data: if any Confidential information which concerns or relates to pharmacy claims, pharmacy
Providers(including,but not limited to,rates paid to such pharmacy Providers)and/or any other pharmacy services-
related matter(collectively,"Pharmacy Confidential information")is provided to Vendor and/or Consultantpursuant
to the provisions of this Agreement, then the following terms shall control Vendor's and/or Consultant's use and
disclosure of such Pharmacy Confidential Information in addition to the other terms and conditions contained in this x
Agreement.In the event of a conflict between this Section and-other provisions in the Agreement,this Section shall
control for purposes of the use of Pharmacy Confidential Information. In no event shall Pharmacy Confidential
Information financial fields be released In combination with Pharmacy Confidential Information provider fields to
any other entity, including bidders in a Request for Proposal ("RFP")or Request for Information("RFI"),or other
similar situation,or to the Employer,without United's prior written consent which may be withheld in United's sole
discretion.Obtaining United's consent may,at United's sole discretion,require the execution of an additional Non-
Disclosure.Agreement by the intended data reciplent or contirmadoill that the data recipient already has sufficient
confidentiality obligations to United to protect the data requested..Pharmacy Confidentint Information.finanoial fields
include,but are not limited to,ingredient Cost Paid,ingredient Cost Submitted,Dispensing Fee Paid,Plat Sales Tax
Amount Paid, Amount Attributed to Product Selection/ Brand Drug, Basis of Reimbursement Determination and
Specialty Claim Indicator. Pharmacy Confidential Information provider fields include, but are not limited to,all
versions/variations of the Pharmacy ID Number/Nome,Pharmacy Chain Code,Pharmacy Dispenser Type.The Patties
agree Vendor may not reverse engineer Pharmacy Confidential Information to obtain the rates paid.to pharmacy k
providers.
Public Records Laws:Employer, and receiving Contractor understand and acknowledge that disclosing Contractor
deems the Proprietary Information as commercially valuable,confidential,proprietary and trade secret information
in accordance with applicable state and federal open and public record laws.Consequently,Contractor believes that
the Proprietary Information would be exempt from:public disclosure under state and.federal open.and public record
laws.Employer shall notify disclosing Contractor,in writing,of the Employer's receipt,of any such request for the
'Proprietary Information, under the applicable public records act. Failure to provide. such notice to 'disclosing
Contractor shall constitute.a material'breach of this Agreement. Such written notice shall,at a minimum,include a
copy of the rogitest for the Proprietary Information.If a request is made torthe Proprietary Information,Cmployer,
and receiving Coittraetomyi11 givedisclosing Contractor written notice to process ilte request and to seek the necessary
itdanetion to prevent such release of the Proprietary.Information.
Change of Control of Vendor and/or Consultant: In the event of an anticipated Change of Control of Vendor and/or
Consultant,Vendor.and/or Consultant shalt notify United at least thirty days in advance,iflegollypermissible,urwithin
24 hours after such Change of Control if otherwise legally prohibited from providing advanced notice. Upon any
notification of Change of Control, United tnay immediately terminate the Agreements by providing,notice.to
Vendor and/or Consultant,and;notwithstanding anything to the contrary in this Agreement,regarding post-termination
use ofConfidential Information,Vendor and/or Consultant shall,at United's option,promptly and without wrduedelay
return ordestroy{with such destruction to be certifiedto United,if requested):all Confidential Information,retaining no
copies. United may, at its sole option, extend the Agreement by notifying Vendor and/or'Consultant, provided,
however;that(i)United received reasonable prior notice ofthe Change of Control,unless Vendor and/or Consultant is '
legally prohibited from doing so; (ii) Vendor and/or Consultant promptly responds to reasonable requests for l
information from United;(ilii)Vendor and Consultant agree to the continued applicationofthe Agreement's terns,as
amended and as applicable; and(iv)United.determines that continuation of the Agreement Will not harm United's
interests,The Parties agree United,reserves the right to request modification or addition of terms to address United's
reasonable concerns prior to extending any of the Agreement and the Parties agree.to work.without undue delay to g
attempt to reach agreement on any such modifications.For purposes of this Agreement,the tern"Change of Control"
shall mean the acquisitionfollowing the date hereof by one of more related thirdpatties of at least f fly.pereent(500/0)
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of the voting securities of Vendor and/or Consultant or the contractual right to direct the voting power of at least fifty
percent(500A)of the voting securities.of Vendor and/or Consultant.The Parties agree that failure to provide notice to
United of a Change of Control in violation of this Agreement is a breach ofthe Agreement.
Conclusion of Services:This Agreement shall terminate at the earliest of:.(i)the conclusion of the Services,(11)(if)
immediately upon written notification due to breach of this Agreement,subject to a cure period of ten(I 0) days
mutually agreed upon by the Parties; (iii) upon at least thirty(30)days written notification.by either party if
termination is without cause,(iv)termination ofthe relationship between Employer,Consultant and Vendor,or.(v)
termination ofthe relationship between United and.Employer,At the conclusion ofthe Services,each Contractor
shall either relinquish to the.other or destroy(with such destruction to be certified to disclosing Contractor)all
Proprietary Information.Notwithstanding the foregoing,except in case of Contractor's breach,and subject to its,
obligations ofconfidentiaiity,to the extent return or destruction is infeasible,the reeelving Contractor may retain
copies of documents.containing Proprietary Information for archival purposes i hat maybe stored in back up media
or othereleetronic data storage systems and to defend its work product and in.such.case,Contractor acknowledges
and agreesthat,so long as,itretains any ofthe Proprietary Information,itshall be subject tothe obligations set forth
herein,including without limitation indemnification obligations,and the Proprietary Information's use shall be
strictly limited.tothose uses which make the destruction or return i nfeasible.orfor litnited uses as ddscribed above.
Breach:If during.the course of the Services it is discovered thatthis Agreementhas been breached by Contractor then
all Confidential Information shall be relinquished to the non-breaching Contractor upon demand.
Indemnification:Vendor agrees to indemnify and hold harmless United, including its alliance partners if applicable,
with respect to any Damages caused by Vendor's breach of this Agreement and/or resulting from Vendor's Systems
Access,if such access has been granted.United agrees to indemnify and/told harmless Vendor with respect to any
Damages caused by United's breach of this Agreement. Consultant agrees:to indemnify and hold hannim—United;
including its alliance partners if applicable, with respect to any Damages caused by Consultant's breach of this
Agreement and/or resulting from Consultant's Systems Access,if such access has been.granted.
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Anti-trust'Statement: Vendor and Consultant represents and warrants that, as applicable, any treatment or use of
Confidential Information.provided to them by United under this Agreement will be done in a manner that complies
with[he"safe hariior",urethod specified in the joint DO;IJFTC Statements ot'flealih Care Antitrust Enforcement Polley,
Statement G;"Statement of Department of Justice And Federal Trade Commission Enforcement Policy on Provider
Participation in Exchanges of Price and Cost information,and related guidance issued by either the Federal Trade '
Commission or the Department ofJustice".This term applies to alt of.United's Confidential Infbi-mittion inchtding.but
not necessarily limited to network provider discounts,allowable amounts,and contracted rates of reimbursement to a
specific provider fora specific service.Violation of the requirements contained in this section shall be considered a
material breach resulting in United's ability to.immediately suspend data sharing and terminate this Agreement.
Governing,Low and Venue. This.Agreement shall be construed in accordance with the laws of the State of
Texas.Ifany action,whether real or asserted,.at law or in equity,is brought on the basis ofthis Agreement,
venue for-such action shall He in state courts located in Tarrant County,Texas.or the United Stairs District
Court for the Northern District ofTexas,Fort Worth Division.
Survival:The requirement to treat all Protected Health Information.as Confidential Information hereunder and the
parties'.indemnification obligations shall survive the termination of this.Agreement. The requirement.to treat all
Proprietary Information as Confidential Information under this Agreement shall remain in fullforce and effect so long li
as any Proprietary Information remains commercially valuable,confidential;proprietary and/or trade secret,but in no
event less than a period.of three(3)years from the date of the Services.
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Assignment:Neither this Agreement nor any panties'rights or obligations hereunder may be assigned without the prior
written approval of the other parties.
Counterparts:This Agreement may be executed in any number of counterparts, which together shall be deemed one
original, and delivery of copies of signatures or facsimile signattu-CS shall be deemed of equal force as delivery of
original signatures.
General: (a)This Agreement is the entire understanding between the parties as to the subject matter hereof. (b) This
Agreement binds the parties and their respective successors, assigns, agents, employers, subsidiaries and affiliates.
(c)No modification to this Agreement shall be binding upon the parties unless evidenced in writing signed by the
party against whom enforcement is sought. (d)Headings in this Agreement shall not be used to interpret or construe
its provisions.(e)The alleged invalidity of any term shall not affect the validity of any otherterms.
'Che patties have caused their authorized representatives to execute this Agreement.
City of Port Worth United Heal thCare Services,Inc.
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By -- By:
Aut iorized Signature �ized Signature
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Name S 1J�---�- -►– --�X S C L
Title 4519 t S fP4 ��h/�Q t�1� 2{� Title
Dato Date —1
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I-Iolmes, Murphy and Associates, LLC Southwestern Health Resources
n — —
By Authorized Signature By Authorized Signature
Name Name
Title Title �,E -/ IY�G r 61V\6 j�l('d� MOJa ans
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_._ Date
Date _ —
00030219.0 (08/17)
APPROVED AS TO FORM AND LEGALITY:
CI ATTORNEY
Aby; �y OF F p�T
O OFFICIAL RECORD
CITY SECRETARY
M�'Y J. Ka ser, lity I Coro •'��
FT.VYtiRTF`3 TX
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