HomeMy WebLinkAboutAgreement A-22-511 with AMS.pdf Agreement No. 22-511
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated November 8, 2022 and is between
3 Acclamation Insurance Management Services, a California corporation("Contractor"), and the
4 County of Fresno, a political subdivision of the State of California ("County").
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Recitals
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WHEREAS, the County has the need to secure the services of a qualified firm to perform
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8 third-party claims administration for its self-insured workers' compensation program; and
9 WHEREAS, the County has a need to secure ancillary program services, including but not
10 limited to, medical bill review,utilization review, Centers for Medicare and Medicaid Services
11 (CMS)/Medicare and Medicaid Extenders Act(MMEA) of 2010 ("CMS/MMEA") Section 111
12 reporting,Nurse Case Management/Advocate, and Medical Provider Network administration in
13 connection with the administration of its self-insured workers' compensation program; and
14 WHEREAS, the County issued Request for Proposal No. 22-051 on March 21, 2022,
15 hereinafter referred to as "RFP No. 22-051," for the purpose of securing said services; and
16 WHEREAS, the Contractor responded to the RFP stating that it is qualified and willing to
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perform said services.
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The parties therefore agree as follows:
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Article 1
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21 Contractor's Services
22 1.1 Scope of Services. The Contractor, as further identified in Exhibit A, shall perform
23 all of the services detailed in Exhibits A and B to this Agreement.
24 1.2 Representation. The Contractor represents to the County that Contractor is
25 qualified, ready, willing, and able to perform all of the services provided in this Agreement.
26 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
27 applicable federal, state, and local laws and regulations in the performance of its obligations
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1 under this Agreement, including but not limited to workers compensation, labor, and
2 confidentiality laws and regulations.
3 1.4 Confidentiality and Data Security. Contractor shall comply with all provisions of
4 Exhibit F to this Agreement, titled, "Confidentiality and Data Security."
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1.5 Health Insurance Portability and Accountability Act(HIPAA). Contractor shall
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comply with all provisions of Exhibit G to this Agreement, titled"Health Insurance Portability
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8 and Accountability Act(HIPAA)."
9 1.6 Settlement of Matters. Contractor acknowledges and agrees that the County
10 reserves the right to settle all matters, and that Contractor shall obtain the County's authority to
11 settle individual matters, as provided in Section 2.1.B.
12 Article 2
13 County's Responsibilities and County's Representative
14 2.1 The County shall do all of the following:
15 A. Cooperate with Contractor as reasonably necessary for Contractor to perform its
16 services under this Agreement;
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B. Provide direction to Contractor as requested, and as related to the settlement of
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individual matters, it being understood between the Parties that the County reserves
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20 the right to settle matters;
21 C. Engage outside counsel for the County in matters, provided however, as provided
22 under Exhibit C to this Agreement, Contractor is solely responsible for paying all of
23 the attorney's fees and costs of such outside counsel;
24 D. Provide oversight of Contractor's performance to ensure Contractor's compliance
25 with the terms of this Agreement; and
26 E. By April 30 of each year during the term of the Agreement, report to Contractor any
27 changes to the County's insurance coverage or policy language which would apply to
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1 this Agreement, including limits, retentions or deductibles, and coverage changes. If
2 there are any such changes, the parties will amend this Agreement accordingly.
3 2.2 County, through_its Risk Management Department, a division of the County's
4 Human Resources Department is authorized to administer this Agreement on behalf of County,
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including,but not limited to, taking the actions of County, set forth in Exhibit A to this
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Agreement, titled"Scope of Services."Nothing in this section limits the County's Auditor-
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8 Controller/Treasurer-Tax Collector's, or the Board of Supervisors', rights under Exhibit A to
9 this Agreement, titled"Scope of Services."
10 Article 3
11 Compensation, Invoices, and Payments
12 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
13 the performance of its services under this Agreement as described in Exhibit C to this
14 Agreement, titled"Compensation."
15 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
16 under this Agreement is: $7,227,491 over the three (3)year base period. Provided that the term
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of this Agreement is extended by the parties pursuant to Section 4.2, "Extension," (a) the
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maximum compensation payable to the Contractor under this Agreement for the fourth and fifth
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20 years shall not exceed $2,500,430 and$2,548,356 respectively, and(b)the maximum payable to
21 the Contractor under this Agreement over the term of the three-year Agreement and two one-
22 year renewal periods will not exceed$12,276,277. The Contractor acknowledges that the
23 County is a local government entity and does so with notice that the County's powers are
24 limited by the California Constitution and by State law, and with notice that the Contractor may
25 receive compensation under this Agreement only for services performed according to the terms
26 of this Agreement and while this Agreement is in effect, and subject to the maximum amount
27 payable under this section. The Contractor further acknowledges that County employees have
28 no authority to pay the Contractor except as expressly provided in this Agreement.
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1 3.3 Invoices. The Contractor shall submit monthly invoices to County of Fresno,
2 Department of Human Resources, Risk Management Division, 2220 Tulare Street, 161h Floor,
3 Fresno, CA 93721 and HRRiskMana ement e,fresnocountyca.gov. The Contractor shall submit
4 each invoice within 60 days after the month in which the Contractor performs services and in
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any case within 60 days after the end of the term or termination of this Agreement.
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3.4 Payment. The County shall pay each correctly completed and timely submitted
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8 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
9 address specified in the invoice.
10 3.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
11 expenses that are not specified as payable by the County under this Agreement.
12 Article 4
13 Term of Agreement
14 4.1 Term. This Agreement is effective on January 1, 2023, and terminates at 11:59pm
15 on December 31, 2025, except as provided in section 4.2, "Extension,"or Article 6,
16 ,Termination and Suspension,"below.
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4.2 Extension. The term of this Agreement may be extended for no more than two, one-
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year periods only upon written approval of both parties at least 30 days before the first day of
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20 the next one-year extension period. The Director of Human Resources or his or her designee is
21 authorized to sign the written approval on behalf of the County based on the Contractor's
22 satisfactory performance. The extension of this Agreement by the County is not a waiver or
23 compromise of any default or breach of this Agreement by the Contractor existing at the time of
24 the extension whether or not known to the County.
25 Article 5
26 Notices
27 5.1 Contact Information. The persons and their addresses having authority to give and
28 receive notices provided for or permitted under this Agreement include the following:
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For the County:
2 Director of Human Resources
County of Fresno
3 2220 Tulare Street, 161h Floor
4 Fresno, CA 93721
HRRiskManagement@fresnocountyca.gov
5 For the Contractor:
6 President/CEO
Acclamation Insurance Management Services
7 10445 Old Placerville Road
Sacramento, CA 95827
8 drusso@Aims4Claims.com
9 5.2 Change of Contact Information. Either party may change the information in
10 section 5.1 by giving notice as provided in section 5.3.
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5.3 Method of Delivery. Each notice between the County and the Contractor provided
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for or permitted under this Agreement must be in writing, state that it is a notice provided under
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14 this Agreement, and be delivered either by personal service, by first-class United States mail, by
15 an overnight commercial courier service, or by Portable Document Format (PDF) document
16 attached to an email.
17 (A)A notice delivered by personal service is effective upon service to the recipient.
18 (B) A notice delivered by first-class United States mail is effective three County
19 business days after deposit in the United States mail, postage prepaid, addressed to the
20 recipient.
21 (C) A notice delivered by an overnight commercial courier service is effective one
22 County business day after deposit with the overnight commercial courier service, delivery
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fees prepaid, with delivery instructions given for next day delivery, addressed to the
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recipient.
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26 (D)A notice delivered by PDF document attached to an email is effective when
27 transmission to the recipient is completed(but, if such transmission is completed outside
28 of County business hours, then such delivery is deemed to be effective at the next
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1 beginning of a county business day), provided that the sender maintains a machine record
2 of the completed transmission.
3 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
4 nothing in this Agreement establishes, waives, or modifies any claims presentation requirements
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or procedures provided by law, including the Government Claims Act (Division 3.6 of Title 1 of
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the Government Code, beginning with section 810).
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Article 6
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9 Termination and Suspension
10 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
11 contingent on the approval of funds by the appropriating government agency. If sufficient funds
12 are not allocated, then the County,upon at least 30 days' advance written notice to the
13 Contractor, may:
14 (A)Modify the services provided by the Contractor under this Agreement; or
15 (B) Terminate this Agreement.
16 6.2 Termination for Breach.
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(A)Upon determining that a breach (as defined in paragraph(C)below)has occurred,
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the County may give written notice of the breach to the Contractor. The written notice
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20 may suspend performance under this Agreement and must provide at least 30 days for the
21 Contractor to cure the breach.
22 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
23 time stated in the written notice, the County may terminate this Agreement immediately.
24 (C) For purposes of this section, a breach occurs when, in the determination of the
25 County, the Contractor has:
26 (1) Obtained or used funds illegally or improperly;
27 (2) Failed to comply with any part of this Agreement;
28 (3) Submitted a substantially incorrect or incomplete report to the County; or
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1 (4) Improperly performed any of its obligations under this Agreement.
2 6.3 Termination without Cause. In circumstances other than those set forth above, the
3 County may terminate this Agreement by giving at least 30 days advance written notice to the
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Contractor.
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6.4 No Penalty or Further Obligation. Any termination of this Agreement by the
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County under this Article 6 is without penalty to or further obligation of the County.
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8 6.5 County's Rights upon Termination.Upon termination for breach under this
9 Article 6, the County may demand repayment by the Contractor of any monies disbursed to the
10 Contractor under this Agreement that, in the County's sole judgment, were not expended in
11 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
12 demand. This section survives the termination of this Agreement.
13 Article 7
14 Independent Contractor
15 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
16 agents, employees, and volunteers, is at all times acting and performing as an independent
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contractor, in an independent capacity, and not as an officer, agent, servant, employee,joint
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venturer,partner, or associate of the County.
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20 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
21 manner or method of the Contractor's performance under this Agreement, but the County may
22 verify that the Contractor is performing according to the terms of this Agreement.
23 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
24 right to employment rights or benefits available to County employees. The Contractor is solely
25 responsible for providing to its own employees all employee benefits required by law. The
26 Contractor shall save the County harmless from all matters relating to the payment of
27 Contractor's employees, including compliance with Social Security withholding and all related
28 regulations.
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1 7.4 Services to Others. The parties acknowledge that, during the term of this
2 Agreement, the Contractor may provide services to others unrelated to the County.
3 Article 8
4 Indemnity and Defense
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8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
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County(including its officers, agents, employees, and volunteers) against all claims, demands,
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8 injuries, damages, costs, expenses (including attorney fees and costs), fines,penalties, and
9 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
10 the performance or failure to perform by the Contractor(or any of its officers, agents,
11 subcontractors, or employees)under this Agreement. The County may conduct or participate in
12 its own defense without affecting the Contractor's obligation to indemnify and hold harmless or
13 defend the County.
14 8.2 Survival. This Article 8 survives the termination of this Agreement.
15 Article 9
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Insurance
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9.1 The Contractor shall comply with all the insurance requirements in Exhibit E to this
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Agreement.
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Article 10
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21 Inspections,Audits, and Public Records
22 10.1 Inspection of Documents. The Contractor shall make available to the County, and
23 the County may examine at any time during business hours and as often as the County deems
24 necessary, all of the Contractor's records and data with respect to the matters covered by this
25 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
26 request by the County,permit the County to audit and inspect all of such records and data to
27 ensure the Contractor's compliance with the terms of this Agreement.
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1 10.2 State Audit Requirements. If the compensation to be paid by the County under this
2 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
3 California State Auditor, as provided in Government Code section 8546.7, for a period of three
4 years after final payment under this Agreement. This section survives the termination of this
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Agreement.
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10.3 Public Records. The County is not limited in any manner with respect to its public
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8 disclosure of this Agreement or any record or data that the Contractor may provide to the
9 County. The County's public disclosure of this Agreement or any record or data that the
10 Contractor may provide to the County may include but is not limited to the following:
11 (A)The County may voluntarily, or upon request by any member of the public or
12 governmental agency, disclose this Agreement to the public or such governmental
13 agency.
14 (B) The County may voluntarily, or upon request by any member of the public or
15 governmental agency, disclose to the public or such governmental agency any record or
16 data that the Contractor may provide to the County,unless such disclosure is prohibited
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by court order.
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(C) This Agreement, and any record or data that the Contractor may provide to the
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20 County, is subject to public disclosure under the Ralph M. Brown Act(California
21 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
22 (D)This Agreement, and any record or data that the Contractor may provide to the
23 County, is subject to public disclosure as a public record under the California Public
24 Records Act(California Government Code, Title 1, Division 7, Chapter 3.5, beginning
25 with section 6250) ("CPRA").
26 (E) This Agreement, and any record or data that the Contractor may provide to the
27 County, is subject to public disclosure as information concerning the conduct of the
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1 people's business of the State of California under California Constitution, Article 1,
2 section 3, subdivision (b).
3 (F) Any marking of confidentiality or restricted access upon or otherwise made with
4 respect to any record or data that the Contractor may provide to the County shall be
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disregarded and have no effect on the County's right or duty to disclose to the public or
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governmental agency any such record or data.
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8 10.4 Public Records Act Requests. If the County receives a written or oral request under
9 the CPRA to publicly disclose any record that is in the Contractor's possession or control, and
10 which the County has a right, under any provision of this Agreement or applicable law, to
11 possess or control, then the County may demand, in writing, that the Contractor deliver to the
12 County, for purposes of public disclosure, the requested records that may be in the possession or
13 control of the Contractor. Within five business days after the County's demand, the Contractor
14 shall (a) deliver to the County all of the requested records that are in the Contractor's possession
15 or control, together with a written statement that the Contractor, after conducting a diligent
16 search, has produced all requested records that are in the Contractor's possession or control, or
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(b)provide to the County a written statement that the Contractor, after conducting a diligent
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search, does not possess or control any of the requested records. The Contractor shall cooperate
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20 with the County with respect to any County demand for such records. If the Contractor wishes
21 to assert that any specific record or data is exempt from disclosure under the CPRA or other
22 applicable law, it must deliver the record or data to the County and assert the exemption by
23 citation to specific legal authority within the written statement that it provides to the County
24 under this section. The Contractor's assertion of any exemption from disclosure is not binding
25 on the County, but the County will give at least 10 days' advance written notice to the
26 Contractor before disclosing any record subject to the Contractor's assertion of exemption from
27 disclosure. The Contractor shall indemnify the County for any court-ordered award of costs or
28 attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
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1 failure to produce any such records, or failure to cooperate with the County with respect to any
2 County demand for any such records.
3 Article 11
4 Disclosure of Self-Dealing Transactions
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11.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation
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or changes its status to operate as a corporation.
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8 11.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
9 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
10 "Self-Dealing Transaction Disclosure Form" (Exhibit D to this Agreement) and submitting it to
11 the County before commencing the transaction or immediately after.
12 11.3 Definition. "Self-dealing transaction"means a transaction to which the Contractor is
13 a party and in which one or more of its directors, as an individual, has a material financial
14 interest.
15 Article 12
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General Terms
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12.1 Modification. Except as provided in Article 6, "Termination and Suspension,"this
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Agreement may not be modified, and no waiver is effective, except by written agreement signed
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20 by both parties. The Contractor acknowledges that County employees have no authority to
21 modify this Agreement except as expressly provided in this Agreement.
22 12.2 Non-Assignment.Neither party may assign its rights or delegate its obligations
23 under this Agreement without the prior written consent of the other party.
24 12.3 Governing Law. The laws of the State of California govern all matters arising from
25 or related to this Agreement.
26 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
27 County, California. Contractor consents to California jurisdiction for actions arising from or
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1 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
2 brought and maintained in Fresno County.
3 12.5 Construction. The final form of this Agreement is the result of the parties'
4 combined efforts. If anything in this Agreement is found by a court of competent jurisdiction to
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be ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
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against either party.
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8 12.6 Days.Unless otherwise specified, "days" means calendar days.
9 12.7 Headings. The headings and section titles in this Agreement are for convenience
10 only and are not part of this Agreement.
11 12.8 Severability. If anything in this Agreement is found by a court of competent
12 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains
13 in effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
14 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
15 intent.
16 12.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
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not unlawfully discriminate against any employee or applicant for employment, or recipient of
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services, because of race, religious creed, color, national origin, ancestry, physical disability,
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20 mental disability, medical condition, genetic information, marital status, sex, gender, gender
21 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
22 all applicable State of California and federal statutes and regulation.
23 12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or
24 obligation of the Contractor under this Agreement on any one or more occasions is not a waiver
25 of performance of any continuing or other obligation of the Contractor and does not prohibit
26 enforcement by the County of any obligation on any other occasion.
27 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
28 between the Contractor and the County with respect to the subject matter of this Agreement, and
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1 it supersedes all previous negotiations,proposals, commitments, writings, advertisements,
2 publications, and understandings of any nature unless those things are expressly included in this
3 Agreement. If there is any inconsistency between the terms of this Agreement without its
4 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
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precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
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exhibits.
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8 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
9 create any rights or obligations for any person or entity except for the parties.
10 12.13 Authorized Signature. The Contractor represents and warrants to the County that:
11 (A)The Contractor is duly authorized and empowered to sign and perform its
12 obligations under this Agreement.
13 (B) The individual signing this Agreement on behalf of the Contractor is duly
14 authorized to do so and his or her signature on this Agreement legally binds the
15 Contractor to the terms of this Agreement.
16 12.14 Electronic Signatures. The parties agree that this Agreement may be executed by
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electronic signature as provided in this section.
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(A)An"electronic signature"means any symbol or process intended by an individual
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20 signing this Agreement to represent their signature, including but not limited to (1) a
21 digital signature; (2) a faxed version of an original handwritten signature; or(3) an
22 electronically scanned and transmitted(for example by PDF document) version of an
23 original handwritten signature.
24 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
25 equivalent to a valid original handwritten signature of the person signing this Agreement
26 for all purposes, including but not limited to evidentiary proof in any administrative or
27 judicial proceeding, and(2) has the same force and effect as the valid original
28 handwritten signature of that person.
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1 (C) The provisions of this section satisfy the requirements of Civil Code section
2 1633.5, subdivision(b), in the Uniform Electronic Transaction Act(Civil Code, Division
3 3, Part 2, Title 2.5, beginning with section 1633.1).
4 (D)Each party using a digital signature represents that it has undertaken and satisfied
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the requirements of Government Code section 16.5, subdivision(a),paragraphs (1)
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through(5), and agrees that each other party may rely upon that representation.
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8 (E) This Agreement is not conditioned upon the parties conducting the transactions
9 under it by electronic means and either party may sign this Agreement with an original
10 handwritten signature.
11 12.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
12 original, and all of which together constitute this Agreement.
13 [SIGNATURE PAGE FOLLOWS]
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
ACCLAMATION INSURANCE COUNTY OF FRESNO
3 MANAGERrni� ES
Don usso,President/CEO Brian Pacheco,Chairman of the Board of
6 Supervisors of the County of Fresno
10445 Old Placerville Road
7 Sacramento,CA 95827 Attest:
Bernidce E. Seidel
8 Clerk of the Board of Supervisors
9 County of Fresno, State of California
10 By
11 Deputy
12 For accounting use only:
13 Org No.:89250100
Account No.:7295
14 Fund No,:1060
Subclass No.:10000
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Exhibit A
1 SCOPE OF SERVICES
2 A. CLAIMS ADMINISTRATION
3 I. General Provisions Regarding Contractor and Contractor's Responsibilities
4
5 a. Unless otherwise stated, Contractor will work with County, through County's Risk
6 Management Department, a division of the County's Human Resources Department, in
performance of its contracted duties as related to County's self-insured worker's
7
compensation program. County's Risk Manager, or his or her designee, is authorized by the
8 County to take all necessary actions on behalf of the County in such matters except for the
9 waiver of any conflict of interest of outside counsel, which waiver authority is reserved by
10 the Board of Supervisors of the County, and for settlement of any matters that are within the
11 authority of the Board of Supervisors of the County.
12 b. Contractor represents to County that Contractor has carefully reviewed the Scope of Services
13 and the Scope of Work Proposal Requirements outlined by RFP No. 22-051, and will comply
14 with all requirements of same.
15 c. Contractor represents to County that Contractor has over 34 years of stated experience with
16 its worker's compensation and liability claims office in the Fresno area and will provide
County with claims administration and ancillary services for its self-insured worker's
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compensation program from Contractor's Fresno office. Contractor represents to County that
18 Contractor's corporate management team of professionals has extensive claims management
19 tenure and collectively has over 80 years of experience.
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21 d. Contractor will take a"Loss Portfolio Management" approach, as defined in the Contractor's
22 Response to RFP No. 22-051, which will be focused on management of the County's entire
23 loss portfolio, thereby protecting the County's financial assets.
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25 e. Contractor will provide the County with a dedicated professional claims management team
26 which will support the program with"value added" components of the organization such as
Contractor's dedicated Client Services Division, Internal Audit Unit, Information
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Technology Group, and Executive Management Team. Contractor represents to County that
28 Contractor is committed to providing the County with cost effective claims administration
A-1
Exhibit A
1 and deliver value added services with measurable results. The Claims Supervisor shall not
2 carry a caseload.
3 f. Contractor's current Medical Director, Dr. Alan Randle, will work with the County to
4 develop a mutually agreeable process for oversight of the Claims Examiner approvals and
5 will be actively involved in the appropriate training of the claims staff in the authorization
6 process, necessary to recognize the most appropriate claims for medical case management
services.
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8 g. Contractor will ensure that all County claims will be performed under the management and
9 supervision of an individual with an extensive Examiner/adjuster background that possesses
10 and maintains a current certificate to administer workers' compensation claims from the State
11 of California.
12
13 h. Contractor will timely update County with respect to all changes or proposed changes
14 relating to any and all statutes, rules, or regulations affecting the County's rights and
15 obligations relating to County's self-insured workers' compensation program.
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i. Contractor's technical team handing the County will provide the claims handling services.
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The team will consist of one (1) Claims Supervisor, six(6) Senior Claims Examiners, one (1)
18 medical only examiner, two (2) Claims Assistants, and one (1) Return to Work Coordinator.
19 The members of the technical team will be exclusively dedicated to the County's account. In
20 case of death, illness, other incapacity, or change of employment (e.g., departure from
21 employment or change of duties within Contractor's organization) of any of the key persons
22 on Contractor's team, Contractor shall provide a replacement of at least equal professional
23 ability and experience as the key person replaced.
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25 j. Contractor will ensure that the Senior Claims Examiners are not assigned more than 150
26 open indemnity claims each, to include future medical claims. In addition to initiating and
maintaining contact with the injured worker, examiners are required to review indemnity
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files every 45-days and update the system with the current issues and progress of the file. At
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A-2
Exhibit A
1 the 90-day time frame, a Plan of Action Review is conducted, using a notepad template, to
2 address all the current and critical issues pending on the file.
3
4 k. The Claims Supervisor will act as the liaison between the County and the Claims Unit and
5 will be assigned to work exclusively on the County's account. The Claims Supervisor
6 reviews the Claim Examiners' Plan of Action Notepads every 120-days.
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1. Under the direction of the Sr. Vice President of Operations, the Claims Manager has
8 responsibility for the daily operations and activities of all (WC) claims staff assigned to their
9 work unit. It is the key position for budget and Profit& Loss (P&L) management for the
10 department. The Claims Manager provides timely review and approval of the work product
11 performed by their assigned personnel. Specifically, with the assistance of the Claims
12 Supervisor, the Claims Manager reviews caseload inventories on a monthly basis to monitor
13 the performance of the teams. When clear disparity is noticed the Claims Manager conducts
14 an evaluation to determine what is the root cause of the inventory increase. From that
15 evaluation, the Claims Manager will make necessary adjustments to the inventory spread
16 between the examiners. In addition, the Claims Manager shall provide ongoing leadership in
company protocol,procedures, and standards of performance, necessary for quality(WC)
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claims management and reserving practices. The Claims Manager is the primary contact for
18 development and maintenance of strong Client relations. The Claims Manager is also
19 responsible for reviewing and enforcing compliance with the State of California Labor Code,
20 and monitors supervisory compliance with best practice performance standards.
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22 in. Contractor employs a Director of Client Relations, who will contact County staff regarding
23 staff s experiences with Contractor, and this information will be provided to Contractor's
24 senior management for review and issue resolution responsibility. The Client Relations
25 Director then follows-up with our client to assure satisfactory resolution.
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n. Contractor employs an independent Legislative Lobbyist/Advocate. The Legislative
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Advocate's will provide its year-end report on passed and pending
28
A-3
Exhibit A
1 legislation to County at no additional charge. In addition to the annual Legislative Update,
2 our Legislative Advocate will send out critical changes to any bill that Contractor is tracking
3 to anyone County designates and will update key personnel within Contractor's organization
4 on a weekly basis regarding any legislative changes that may impact Contractor and/or
5 County.
6
o. Contractor will utilize its training and mentorship programs to ensure any new staff are
7
quickly brought up to speed on Contractor's protocols and best practices, as well as the
8 County's Best Practices and Performance Standards.
9
10 p. Contractor will stablish and implement procedures necessary for Contractor to accurately,
11 effectively, and timely pay from the County's workers' compensation trust account all costs
12 associated with the operation of the County's self-insured workers' compensation program
13 and provide appropriate supporting documentation for all payments.
14
15 q• Contractor will maintain fiscal records supporting all payments processed for a period of at
16 least five (5)years from the date of payment and make such records available to the County,
its auditors, or designees for review within ten (10) working days of receiving a written
17
request.
18
19 r. Contractor will adhere to Accounting Principles Generally Accepted in the United States
20 (GAAP) and best-practice internal controls in processing all payments related to workers'
21 compensation claims.
22
23 s. Further supplemental and relevant provisions from Contractor's Response to REP No. 22-
24 051, the entirety of which is included herein by reference, are attached hereto as Exhibit B.
25
26
27
28
A-4
Exhibit A
1 II. Claims Processing
2
3 a. Contractor shall perform services to include workers' compensation claim administration,
4 including but not limited to, medical bill review, Centers for Medicare and Medicaid
5 Services (CMS) /Medicare and Medicaid Extenders Act (MMEA) of 2010 ("CMS/MMEA")
6 Section I I I reporting, Division of Occupational Safety and Health("Cal/OSHA")reporting,
nurse case management, and medical provider network administration as specified by County
7
in accordance with the specifications, requirements, terms, and conditions set forth on RFP
8 No. 22-051, the Contractor's response to RFP 22-051 as identified in more detail below and
9 incorporated in its entirety herein by reference, and applicable portions of Title 8 of the
10 California Code of Regulations and the Labor Code and all other applicable laws, rules, and
11 regulations. Contractor has carefully reviewed the Scope of Services and the Scope of Work
12 Proposal requirements outlined by RFP 22-051 and will comply with ALL requirements.
13 The County, through its - Human Resources Department, Risk Management Division shall
14 maintain copies of RFP 22-051 and Contractor's response to RFP 22-051 during the term of
15 this Agreement and make a copy available to Contractor at its request.
16 b. Contractor will discuss with County the overall program goals, clear claim handling
Objectives of County and will create the processes &procedures for any special claim
17
handling instructions. This will be formalized into a written document, approved, and shared
18 electronically with County.
19 c. Contractor's Internet based metrics dashboard system will allow the County to
20 closely manage the County's workers' compensation programs from an overall
21
perspective.
22
23 d. Each and every new claim reported will be entered into Contractor's claims management
system within 24 hours and will be reviewed by the assigned Senior Claims Examiner to
24
identify all key technical issues, the nature and scope of the injury, and will provide
25 instructions to the Claims Assistant, who will issue disability benefits/notices.
26 e. Contractor will assist all injured County's employees through the entire workers'
27 compensation process, respond to their questions and concerns and provide timely
28 appropriate benefits in accordance with all regulations.
A-5
Exhibit A
1 Specifically, Contractor shall:
2 1. Make contact with the injured employee (telephone contact), the County and medical
3 provider within 24 hours of notice of claim. Contractor's Contact Obligations.
4 2. Confirm that the Workers' Compensation Claim Form (DWC-1 form) was provided to
5 the injured employee within one (1)working day of knowledge of the claimed injury.
6 If there is no evidence that the form was provided, Contractor will provide the DWC-1
with the initial contact letter within three (3)working days of receiving the claim.
7
3. Return phone calls to injured employees within one (1)working day and respond to
8 written correspondence within five (5) days of receipt.
9 4. Immediately following its 24-hour telephone contact, Contractor will send the injured
10 employee a customized"care" letter that expresses concern, acknowledges receipt of
11 the claim and provides contact information on the injured employee's claim
12 5. Continue to communicate with the claimed injured employee on a bi-weekly basis,
13 while that employee is off work.
14 6. Conduct regular follow-up communications with the injured employee throughout the
15 life of the claim file, which includes providing information, guidance, and assistance
16 regarding benefits, notices, and inquiries on specific injuries and permanent disability
ratings, Qualified Medical Exams and the settlement process. Contact is made verbally
17
and followed-up in writing, in order to appropriately document the activity in claim
18 file.
19 7. In cases of catastrophic injury, work closely with the County to align our involvement
20 with what is appropriate and warranted by all parties affected by this event.
21 8. As need, recommend a Field Nurse Case Manager be assigned to the file, who can
22 provide insight and clarity to the medical situation, while offering wider support and
23 counseling to the family members.
24
25 f. Regarding litigated claims, Contractor will maintain control over the claim file regardless of
26 the litigation status, and it is Contractor's duty to supervise and monitor the litigation events
and ensure compliance with all of the County's protocols. Contractor will work closely with
27
all assigned outside defense counsel to create good working relationships and a partnership
28
A-6
Exhibit A
1 approach once a file is litigated. Contractor will additionally assist the County in reviewing
2 and recommending defense attorneys for the defense legal panel.
3
4 Specifically, Contractor shall:
5 1. Alert County to the need for outside counsel as soon as the need is evident, and assign the
6 case to an attorney that is on County's panel, with County's input and approval, subject
7 to the attorney clearing conflicts of interest in representing the County in the matter;
8 2. Upon the selection of outside defense counsel for a specific case and prior to counsel's
9
initiation of work on a given case, (a) obtain such outside counsel's clearance (or
10
County's waiver) of conflict of interest in representing County in the matter, and(b)
11
12 after clearing such conflict(or obtaining County's waiver) coordinate with County for the
13 transmittal and execution of engagement letter correspondence between the County and
14 its outside counsel, pursuant to their agreement for legal services; Contractor
15 acknowledges and agrees that the Board of Supervisors of the County reserves the right
16 on behalf of the County to waive any conflict of interest of outside counsel, and that any
17 requested waivers of a conflict of interest shall take into account the time necessary for
18 the County's Risk Manager to submit such requests to the Board of Supervisors.
19 3. For each trial matter, include County in all communications regarding pre-trial
20 proceedings, including depositions, all other trial preparation, and trial;
21
4. Timely apprise County of all settlement offers and seek and obtain any and all settlement
22
authority from County;
23
24 5. Attend Workers' Compensation Appeals Board hearings, rehabilitation hearings, and
25 meetings with defense counsel where permitted by statute;
26 6. Coordinate multi-forum cases that include both workers' compensation and general
27 liability or employment liability issues with County and defense counsel to ensure a
28 global approach to defense or settlement;
A-7
Exhibit A
1 7. Review and monitor outside counsel's monthly billings and provide County with monthly
2 billing reports and invoices;
3 8. Provide to County all cases status updates and case summaries from outside counsel;
4 9. Facilitate the timely payment from the workers' compensation trust account of all legal
5
fees incurred by outside counsel. Contractor shall review legal invoices for accuracy and
6
approval before issuing payment.
7
8 g. Provide County staff with continuous access to Contractor's risk management information
9
system, or successor risk management information system, and any affiliated reporting
10
system.
11
h. Provide online access to Employer's Report of Occupational Injury or Illness, Form 5020, for
12
13 designated County staff, and provide appropriate training relating to the use of the online
14 5020 to County staff as requested and/or required.
15 i. Ensure that detailed claim notes are annotated in each individual claim in the Contractor's
16 risk management information system. At a minimum, any paperless processes need to ensure
17 that adequate claim note annotations indicate the identity of the person who entered the note
18 and the contents of all documents scanned into the system, any issues related to the claim
19 summarized from the scanned document and provide an updated status of the claim and/or
20 claimant work status as appropriate.
21 j. Ensure claims management reviews in the Contractor's risk management information system
22
are updated and approved by the Claims Supervisor every 45 days for active claims and
23
every 90 days for future medical claims.
24
25 k. Perform all claims management procedures in accordance with the most current Public Risk
26 Innovation, Solutions, and Management("PRISM") Workers' Compensation Claims
27 Administration Guidelines.
28 1. Discuss with County staff all compensability decisions.
A-8
Exhibit A
1 m. Assist County with integration of temporary disability payments by ensuring delivery of
2 temporary disability checks to the County Payroll Division on Wednesday and Friday(or
3 such alternate dates as specified by County) of each week via courier system or other reliable
4 method of delivery.
5
n. Utilize information provided by and cooperate in the enforcement of any Medical Provider
6
Network implemented for County claims, including but not limited to, obtaining pre-
7
8 certification for medical providers through utilization review and requesting case
9 management as needed or at County's request.
10 o. Maintain close liaison with medical providers to assure that injured workers receive proper
11 care and that such medical providers treating injured workers are compliant with any and all
12 rules and regulations governing the treatment of injured workers and immediately report any
13 incidents of non-compliance to County.
14 p. Consult with, and seek authorization from, County prior to referral of any claims to outside
15 investigators.
16 q Notify County within three (3) working days from the date of the receipt of notice of an
17
employee having reached Maximum Medical Improvement(MMI), or otherwise being
18
declared Permanent and Stationary(P&S) and consult with County and the affected County
19
20 department prior to any offer of permanent modified/alternate work or disbursement of
21 supplemental job displacement benefits.
22 r. Seek and obtain written authorization from County for all settlements, including stipulations.
23 Requests for authorization need to be submitted to the associated Analyst in on the
24 Settlement Authority Request(SAR) Form. Pursuit of settlement should be undertaken when
25 final medical, legal, or other similar information is received and wherein no further issues are
26 in dispute. A settlement demand will be solicited from the applicant attorney on represented
27 claims, and consensus by the parties on settlement terms must be achieved prior to the
28
A-9
Exhibit A
1 processing of the SAR. Settlement should be achieved prior to any mandatory settlement
2 conference. Exclusions to this posture shall be discussed with County.
3 s. Pay all compensation and medical benefits from the workers' compensation trust account in a
4 timely manner and in compliance with statutory requirements of the California Labor Code.
5
t. Review, compute, and pay all informal ratings, death benefits, findings and awards, life
6
pensions, or Compromise and Release settlements.
7
8 u. Issue the initial indemnity payment to the injured worker within fourteen(14) days of the
9 first day of disability. Late payments must include the 10% self-imposed penalty in
10 accordance with Labor Code Section 4650.
11 v. Report all late penalties to the County. Contractor shall bear the cost and any late payment
12 due to its own activity.
13 w. Ensure that County Risk Management is timely provided with copies of all Applications for
14 Adjudication of Clams, Declarations of Readiness to Proceed, Hearing Notices, Settlements
15 Concluded, and Findings and Awards rendered by the Workers' Compensation Appeals
16 Board.
17
x. Further supplemental and relevant provisions from Contractor's Response to RFP No. 22-
18
051, the entirety of which is included herein by reference, are attached hereto as Exhibit B.
19
20
21 B. ANCILLARY SERVICES
22 A. Contractor shall:
23 1. Provide workers' compensation services training to County personnel as an integral part of
24 Contractor's value-added partnership. At request of County, Contractor will conduct or assist
in conducting training sessions for County personnel involved directly or indirectly in the
25
administration and or processing of industrial injury claims. Specifically, -training sessions
26 for County of Fresno members will involve proper reporting, new case law or changes in the
27 methodology set by the State of California. on the delivery of Training sessions are held at
28 Contractor's offices, County Locations, or other specific areas designed to accommodate a
A-10
Exhibit A
1 number of personnel. This service comes at no additional cost. Training to County
2 personnel will also entail on how to use the claim system, dash boards, and report module.
3 Contractor shall provide appropriate training relating to the operation of each risk
4 management information including but not limited to, the generation of reports associated
5 with the County's self-insured workers' compensation program.
6 2. Obtain final approval from the County for any Contractor personnel replacement. The
County has the right to request removal or reassignment of Contractor personnel assigned to
7
the account with 30 days written notice.
8 3. Ensure Contractor's staff assigned to the County's account are available to County staff
9 every County business day between 8:OOam to 5:OOpm Pacific time.
10 4. Ensure that all assigned Senior Claims Examiner and claims examiners comply with all legal
11 and regulatory licensing and continuing education as required by the State of California.
12 5. Review with County staff at least quarterly the then-current status of the County's self-
13 insured program, including identification of areas of concern and recommended changes for
14 the purpose of improving the program. An annual Stewardship Report will be prepared and
15 reviewed with the County that documents this process and its findings. Such quarterly reports
16 are required means of facilitating effective ongoing analysis of program efficacy.
Additionally, Contractor creates custom reports/analytics that suit the needs of our clients
17
and reports out on this information as indicated by the County.
18 6. Provide statistical reports and any other information as required by County for Risk
19 Management's preparation of actuarial reports and allocation of County's workers'
20 compensation costs among County departments.
21 7. Prepare the Public Self-Insurer's Annual Report and submit it to the State of California at
22 least four(4) weeks prior to the submission deadline, and promptly provide County will the
23 copy thereof which has been so filed.
24 8. At County's request, provide listing of open claims by location, including information on
25 injuries sustained and cost incurred in the administration of the claim as well as any other
26 reports required for program fiscal management activities.
27 9. Generate the following reports at no additional cost to County:
28 i. Subrogation Recovery;
A-11
Exhibit A
1 ii. TTD (temporary total disability) Report;
2 iii. Open Claims;
3 iv. New Claims by Adjuster;
4 V. Reopened Claims by Adjuster;
5
vi. Closed Claims by Adjuster;
6
vii. Monthly Payment Variance Report;
7
8 viii. Litigated Claims Report;
9 ix. Claims in Subrogation Report; and
10 X. Historical loss and expense reports showing year-to-year comparison.
11 10. Prepare in a timely manner the information necessary for Risk Management to issue Federal
12 form 1099 notices to vendors paid and provide such information to the County Auditor-
13 Controller/Treasurer-Tax Collector in a format acceptable to the Auditor-
14 Controller/Treasurer-Tax Collector.
15 11. Provide in a timely manner Form W-9 and California Form 590 to the County Auditor-
16 Controller/Treasurer-Tax Collector in a format acceptable to the Auditor-
17
Controller/Treasurer-Tax Collector.
18
12. Provide to County in a timely manner and in a format acceptable to County, monthly check
19
20 registers and any other financial reports related to County's self-insured workers'
21 compensation program requested by County.
22 13. Conduct yearly escrow analysis at no cost to the County to determine the sufficient funding
23 level needed to fund the County's workers' compensation program.
24 14. Make Senior Claims examiners and supervisors available for participation in claims reviews
25 with representatives of the affected County department and Risk Management as requested.
26 15. Forward copies of all investigation reports and invoices prepared by outside investigators
27 along with any invoice to County Risk Management.
28
A-12
Exhibit A
1 16. Provide to County monthly claims summary, detailing aggregate of new claims opened,
2 stipulated, and closed.
3 17. Provide to County monthly claims summary detailing all claims that have been identified as
4 having subrogation potential that have been unresolved.
5
18. Report to County any case that has the potential to exceed or have reached 50% or the
6
County's self-insured retention level to the County and to the excess carrier in accordance
7
8 with reporting criteria established by PRISM. Cases that meet established reporting criteria
9 shall be reported within five (5) days of determining the criteria is met.
10 19. Assume control and custodial responsibility for all existing hard copies of County's workers'
11 compensation files.
12 20. Assert as strong Quality Control Program, in which it consistently monitors, measures
13 performance, and reviews the quality of the services being provided to ensure superior
14 customer service and cost saving results for County.
15 21. Conduct audits against Contractor's best practice standards as well as the Client's Special
16 Handling Instructions.
17
22. Further supplemental and relevant provisions from Contractor's Response to RFP No. 22-
18
051, the entirety of which is included herein by reference, are attached hereto as Exhibit B.
19
20 C. CONTRACTOR'S MEDICAL MANAGEMENT OBLIGATION AND MEDICAL
21 PROVIDER NETWORK (MPN) RESPONSIBILITIES
22
Contractor shall:
23
24 1. Consult with County to ensure that proper procedures are in place for the timely and efficient
25 transfer of all medical billings for review in accordance with the guidelines set forth in the
26 most current PRISM Workers' Compensation Claims Administration Guidelines.
27 2. Ensure that all medical billings subject to review are adjusted to reflect any and all pertinent
28 fee schedules and any savings generated by utilization of any Preferred Provider
A-13
Exhibit A
1 Organization. Ensure all medical billings paid are from authorized providers for approved
2 services.
3 3. Address and resolve all provide complaints/appeals as it pertains to the review and
4 adjustment of medical billings. If a complaint or dispute cannot be resolved, provide
5
documentation to substantiate and defend the billing reviews including provision of expert
6
witnesses if necessary.
7
8 4. Provide County with monthly reporting detailing utilization and savings realized for the
9 month prior and on year-to-date totals.
10 5. Conform to all Utilization Review Standards set forth in the California Labor Code and the
11 California Code of Regulations.
12 6. Collaborate with County to develop referral criteria to determine the types of issues that
13 should be referred to utilization review.
14 7. Consult with County to ensure that proper procedures are in place for the efficient referral
15 and processing of requests for utilization review.
16 8 Address and resolve all appeals and provide all required notices in a timely manner.
17
9. Provide monthly reporting to County detailing number of reviews conducted, costs, savings,
18
and any other information requested by County subject to system limitations.
19
20 10. Administer the existing MPN while working with County to improve the MPN. Contractor
21 will designate and make available a specific individual to assist County with MPN
22 administration, modification, development, and implementation.
23 11. While administering and working to improve MPN, Contractor must ensure that the MPN
24 complies with the California Labor Code and the California Code of Regulations. If there is
25 any change in the MPN, Contractor must conduct all actions required to gain State approval
26 of the network, to include processing of all required communications with County
27 employees, and providing any printed materials or notifications required. As appropriate, the
28
A-14
Exhibit A
1 MPN shall belong to the County with Contractor acting in an administrative and
2 representative status.
3 12. Assist County with maintenance of the MPN as it relates to the addition or removal of
4 providers within the MPN.
5
13. Monitor providers to ensure that County injured workers are receiving appropriate health
6
care and that all providers are compliant with all rules and regulations governing MPNs.
7
8 14. Address County concerns with providers as necessary.
9 15. Provide County with reporting as requested detailing utilization of the network.
10 Prepare and distribute annual reminders to all County employees regarding the existence of
11 the County MPN and the requirements for obtaining medical care under the auspices of the
12 MPN.16. Contractor shall administer subrogation activities for all cases wherein a third party
13 may be responsible for an injury to a County employee in accordance with the guidelines set
14 forth in PRISM'S Workers' Compensation Claims Administration Guidelines. Contractor
15 shall consult with County to determine whether or not legal representation is needed for
16 subrogation activities. Contractor shall provide a monthly summary of all cases wherein a
17
third party may be responsible for an injury to a County employee and current recovery
18
status.
19
20 17. Consult with County to develop criteria for referral of claims requiring nurse case
21 management to contracted medical case management provider for nurse intervention.
22 18. Consult with County and contracted medical case management provider to develop processes
23 for timely and efficient referral of claims requiring medical case management.
24 19. Agree to be County's designated reporting agent for CMS/MMSEA Section 111 reporting
25 compliance.
26 20. Develop reporting protocols and tracking mechanisms to ensure all required claims for
27 reporting under CMS/MMSEA Section 111 are in fact reported in a timely, accurate and
28 complete manner that comports with the applicable regulatory guidelines.
A-15
Exhibit A
1 21.Ensure that Medicare/Medicaid eligibility information is appropriately entered into claim
2 system to ensure such status is taken into consideration for claims administration and
3 settlement activities.
4 22. Discuss any CMS/MMSEA reporting issues with County when identified.
5
23. Use Cal/OSHA rules and regulations to make recordability determination and maintain
6
appropriate recordkeeping.
7
8 24. Use data from claims management system to track and record work status, identifying days
9 away from work and days of restricted work.
10 25. Use claims management system to produce Cal/OSHA 300 logs, 300A, and 301 forms, and
11 Bureau of Labor Statistics (BLS) Surveys Away, Restricted, or Transferred(DART) Reports.
12 26. Provide supporting documentation in the event of regulatory audits.
13 27.Use claims management system to track and record incidents by specific worksites, as well as
14 to roll up data to different management locations. Data shall be filtered according to locations
15 and regions, or across the entire organization.
16 28 Use claims management system to create reports of injury information to assist County in
17
identifying and addressing safety trends, as well as reports to demonstrate regularity
18
compliance or by location/facility as needed.
19
20 29. Further and supplemental and relevant provisions from Contractor's Response to RFP No.
21 22-051, the entirety of which is included herein by reference, are attached hereto as Exhibit
22
23
24
25
26
27
28
A-16
Exhibit B
1 SUPPLEMENTAL PROVISIONS FROM CONTRACTOR'S RESPONSE TO RFP NO.
22-051
2
3 All references herein to "AIMS," or"we," or similar descriptions mean the Contractor.
4
5 I. Claims Administration Provisions
6 AIMS undergoes SSAE 18 audits annually to ensure our controls are effective
because we are very earnest about our business and the security and confidentiality of
7 our client's information. We successfully complete the SSAE 18 audit annually.
8
9 To better assist our Supervisors' monitoring of an adjuster's work, they actively utilize the AIMS
Claims Management Information System, which sets an automatic Supervisor diary for seven
10 (7) days following claim entry, diary for an initial 28-day review by the Claims Examiner, and a
42-day review by the Claims Supervisor to confirm that all issues on the claim have been
11 addressed (i.e., subrogation, notices,benefit provision and proper notifications, denied claims,
12 delayed claims, reserves, legal referral, settlement review, trust fund level, check registers,
service of medical reports, Orders, DOR's, Conferences, other legal notices, compliance with
13 excess insurance requirements etc.). The Claims Supervisor reviews claims at regularly timed
intervals or when specific events occur such as surgery or litigation, when the claim meets
14 reserving or payment thresholds, and in the course of continuous file reviews and claims
15 discussions. Supervisor diary review takes place every 120 days on active indemnity files. With
future medical cases, the diary is typically conducted every one hundred and eighty (180) days to
16 ensure continued reserve adequacy. Active files may be reviewed in shorter spans if additional
17 information is received that changes the outlook of the claim and its disposition. When that
occurs, a full review is conducted, and the results are noted in the claim file notepad. The action
18 plan details current and the future activity required to keep the file moving forward. It also
updates all information involving the employee, including work status, medical status and
19 reserve accuracy.
20 AIMS requires that all claims' activities be documented in the notepad. Reserves are
reviewed no less frequently than every 90 days and an explanation of any changes is
21 entered into the claim notepads. Notes can be appended and cannot be edited or
changed. All updates must be posted timely to the notepad and clearly outline the facts,
22 issues, proactive action plan to resolve and future diary date. AIMS has in place a custom
23 internal dashboard that identified all key performance issues on every file in an examiner's
inventory and tracks the "lag time" from the last activity to the current date. This tool quickly
24 and efficiently identifies every file out of compliance and assists the Examiner and Supervisor's
attention to those files that need to be addressed. This tool also provides the management team
25 with a clear picture of the ongoing claims activity within their inventory oversight.
26
27 The following Time Performance Standards are part of our Best Practices audit
standards, which are used to help keep claims on track for prompt resolution.
28 B-1
Exhibit B
1
2 TASK TIMEFRAME
3 Claim set up in Computer Within one (1) working day of date of receipt
4
Initial Claimant Contact Within one (1) working day of date of receipt
5
6 Subsequent Claimant Contact Every 14-days of continued disability—or every thirty(30)
7 days if on modified duty
8 Initial Client Contact Within one (1) working day of date of receipt
g Initial Medical Provider Contact Within one (1) working day of date of receipt
10 Initial Payment of Disability Within fourteen(14) days of first day of disability
11 Investigation Within five (5) days of knowledge of condition requiring
12
investigation
13
14 Investigation Reports Within fifteen (15) days of assignment—subsequent reports
15 maximum of every thirty (30) days
16 DWC Benefit Notices Within fourteen(14) days of the event causing the need for
17 notice
18 Penalty Report Form To be completed within 72 hours of notice of penalty-Form
19 to home office within 5 working days
20 Penalty Payments Self-imposed penalty to accompany delayed benefit
21
Auto Pay Schedules Not to be authorized for more than seven (7)periodic
22
payments (84) days
23
24 Advance Travel Expense At least ten(10) days before examination date
25 Transportation Reimbursement Approval for payment within fifteen(15) working days of
26 request for reimbursement
27
28 B-2
Exhibit B
1 Medical Treatment Billings Approval by examiner for payment within ten(10) calendar
2 days of receipt of bill
3 Payment of electronic bills Within fifteen(15) days of electronic receipt
4
Contested medical bills Notice to provider within thirty(30) calendar days that bill
5
is contested, denied or incomplete
6
7
8 TASK TIMEFRAME
9 Payment of Awards, C & R's, Approval for payment within fourteen(14) calendar days of
10 stipulations receipt
11 Litigation Referral to defense council no more than ten(10) days from
12 date of decision to refer(sooner if impending court date or
13
other deadline)
14
Initial status report from defense Maximum of fifteen(15) days from date of referral
15
counsel
16
17 Subsequent reports Maximum of thirty(30) days from last report
18 SubrogationNotification/Contact with negligent third party within thirty
19 (30) days of determination of existence of subrogation
20 Balancing of Claim File Maximum of every ninety (90) days or end of benefit,
21 whichever occurs first
22 Excess Reporting/Reimbursement Initial reporting—within ten(10) working days of date of
23
knowledge that any reporting Criterion has been met
24
Requests for reimbursement Maximum of every ninety (90) days
25
26 Case Closure Within thirty(30) days of the final payment, notice, or as
27 provided by law
28 B-3
Exhibit B
1 Telephone Inquires Return Calls—within one (1) working day of original
2 telephone inquiry
3 Plan of Action Review Every ninety (90) days a full plan of action update is noted
4
in the system
5
Return Correspondence Written answer completed and returned within five (5)
6
7working days of receipt
8 Supplemental Job Displacement Via Certified Mail within 10 days of last payment of
9 Vouchers temporary disability
10 (Potential Notice)
11 Conversion of Medical Only to Within one (1) day of knowledge that file needs to be
12 Indemnity converted and reviewed/approved by Supervisor
13 Reserves At initial file setup
14
Within seven(7) days for any event that triggers the need
15
for a reserve change
16
17
18 TASK TIMEFRAME
19 Reserve reviews required at a maximum of every ninety
20 (90) days
21 Status Reports Every ninety (90) days created and provided to Client
22 Examiner File Review No less than every forty-five (45) days—documented by
23
notepad activity under"examiner review"
24
Supervisory File Reviews At a maximum of every one-hundred and twenty (120) days
25
26
27
28 B-4
Exhibit B
1 AIMS requires all activity to be documented in our Claims Management System within 5-days of
2 said activity. The Notepad module of the Ventiv System is where all the technical claims
handling activity notes are stored. Through custom Examiner Productivity Reports AIMS
3 monitors the progress of each claim file to resolution
4 All claims, which are to be denied or delayed,pending a compensability decision, will be done in
5 keeping with all applicable statutory rules and regulations (and/or case law). All denials are
approved by the team Supervisor. AIMS Claims Examiners obtain information and evaluate the
6 need for investigation by conducting 3-point contact within 24-hours of receipt of new workers'
compensation claims. The purpose of this contact is to gather all information on the nature and
7 extent of the injury, how the injury occurred and if there are any outside employment factors to
8 consider. The Claims Examiners then evaluates all aspects of the reported injury for;
AOE/COE issues, subrogation potential and seriousness of the medical condition to
9 determine if immediate referrals for investigation are needed and/or Nurse Case
Management assignment. As information flows to the Examiner, they are constantly evaluating if
10 what they are reviewing correlates with the reported injury and present
11 medical condition. Within the first 14-days of receipt the Examiner will make a
determination if the claim requires more information to determine if it is related to their
12 employment. Once an Examiner has determined more information is warranted, the next step is
to clearly identify in the Plan of Action on what information they are requiring to make a
13 compensability determination. This is a critical step, early on in the claims process, to assist all
14 involved in the review and monitoring of delayed claim within the AIMS team. The Examiner
carefully delineating the information needed and the reasons for requesting this information help
15 steer the delay process towards the 90-day decision due date. Depending on what the additional
information is, the Examiner may make an investigative referral to take the statement of the
16 injured worker and/or obtain prior medical treatment information by securing a medical release
17 and medical history. A statement is generally warranted when the mechanisms of injury are in
question and/or there is information as to the credibility of the employee and specifics
18 surrounding the injury. The purpose of securing this "under penalty of perjury" is to lock down
the employee's statements while the injury is fresh in their mind and before too much
19 conversation at work has occurred. One of the key elements to determining if an
20 injury/accident actually occurred on the job is to define quickly who the witnesses were
and then note if their history of events match the injured employee's version. An
21 investigator is critical to obtaining these statements quickly, accurately, and with
22 acknowledgements. If Client authorization is required prior to assigning an investigator that
documentation shall be obtained before initiating any field investigation. The authorization will
23 be documented in the notepad section of the claims file.
24 In addition to identifying potential fraudulent claims, the Claims Examiner will guide and
25 monitor said fraud investigation, coordinate efforts with the local District Attorney's office and
keep key Client personnel apprised of all progress.
26
The 3-Point Contact is made up of a series of telephonic interviews designed to establish the
27 validity of the claim and to obtain information that may prove helpful in the later disposition.
28 B-5
Exhibit B
1
2 After completion of the 3-Point Contact, the Claims Examiner will request an Index
Bureau check on all claims involving loss time. During the preliminary investigation if
3 there are questionable facts, we may also call upon an outside firm specializing in AOE/COE
4 investigations to assist in fact gathering. Additionally, facts that become
apparent during the development of the claim may cause a request for an activity check
5 or sub-rosa investigation to be ordered. Finally, if there is substantial reason and evidence to
6 believe a fraud investigation is warranted, we will review and obtain approval from the Client.
7 Medical-Only file is converted to indemnity after being open for 90-days as per PRISM
Excess Guidelines (current County Excess Program) so due to this an average medical only file
8 closes within the 90-days or is converted to an indemnity file.
Indemnity files on average are closed within 120— 180 days if the injured employee fully
9 recovers from the injury.
10
11 a. Litigated Claims:
12 AIMS has formal Litigation Procedures that we incorporate in our handling of litigated
claims in full cooperation with attorneys designated by the County. Our Litigation
13 Procedures involve preparing the necessary documentation for transmitting the claim to
14 defense counsel with instructions. The Claims Examiner directs the litigation with input
of defense counsel and the County.
15
We also prepare and report the progress on the claim to our Client. We recognize the importance
16 of timely notification of scheduled appearances and commit to
17 providing adequate notice to the handling defense attorney firm within five days from initial
receipt of Notice of Hearing. All medical information received from applicant or his/her attorney
18 will be forwarded within five days from the date of initial receipt. All benefits paid to the
applicant will be summarized and along with the completed Balance Sheet, delivered to the
19 defense counsel at least ten days, if not sooner, prior to the Mandatory Settlement Conference.
20 Subsequent hearings or proceedings mandated by the Workers' Compensation Appeals Board
(WCAB)will also have the most recent summary of the benefits paid, along with a current
21 Balance Sheet.
22 Procedures: Upon receipt of notice indicating a claim has become litigated and/or the
23 claimant has become represented, the following is completed within 25 calendar days of
receipt:
24 . Evaluate all reserves
25 • Indicate on the physical file that the claim is litigated and the identity of Defense
Counsel.
26 • Make the appropriate adjustments in the Management Information System
• Database.
27
28 B-6
Exhibit B
1 • If appropriate, file an Answer to the appropriate parties, delineating the areas/issues in
2 dispute and the stipulated facts.
In addition:
3 1. The Examiner is responsible for performing all support functions of the litigation
process that do not require the time of counsel.
4 2. Within their capabilities and as statutes allow, an Examiner or Supervisor may
5 represent a Client before the Appeals Board of California or administrative or
judicial body. If the case has a defense attorney assigned, it shall not be necessary
6 for the AIMS Examiner to attend the hearing, unless issues call for their
attendance.
7 3. If assigned to defense counsel, an initial status report should be received within 15
8 days of assignment. Subsequent reports are to follow every 30 days. Within 5
days following an appearance, a hearing report should be prepared and submitted
9 to the Examiner with the following:
• Case caption, time, date, place of hearing
10 • Attendees
11 • Issues discussed
• Disposition
12 4. The hearing report should be prepared within five (5) days of the hearing or
13 conference, and should be distributed to all interested parties.
5. All branch offices shall establish and maintain an approved legal panel. In addition,
14 each Client Handling Instructions shall contain a list of approved defense firms.
6. An explanation of all issues, background data, and the specific goals of the referral
15 are to be provided to Defense Counsel by the Examiner at the time of referral.
16 7. The Examiner/Supervisor coordinating the claim will review and document the
claim status on all cases scheduled to go to trial or hearing at least seven (7) days prior to the
17 trial/hearing date.
8. All Clients shall have the settlement authority provided AIMS documented in the
18 Client Handling Instructions.
19 9. Upon receipt of documentation indicating a settlement demand or offer, the
Examiner/Supervisor shall evaluate the demand or offer and complete a Settlement
20 Analysis Worksheet to document the claim file with the recommendation or answer.
10. All proposed settlements are discussed with our Client, and settlement authority
21 obtained. This is done well in advance of the formal agreement itself. The authorization is
22 documented in the claim file/claim notes. If AIMS has been granted blanket settlement
authority up to a designated amount, the file handler shall still inform Client before the act of
23 entering into settlement.
24 11. A primary responsibility of the Examiner is to control defense costs. Thus, the
Examiner is to work closely with defense counsel and provide approval as required
25 to obtain depositions, request medical examinations, conduct discovery, etc.
12. The Examiner has the responsibility to review all defense counsel billings, and
26 recognize excessive time charges for specific legal functions, unnecessary or
27 unauthorized discovery, excessive hourly rates, duplicate charges, mathematical
errors, etc.
28 B-7
Exhibit B
1 13. Upon receipt of a Decision or Order, the Supervisor shall make a prompt analysis
regarding an appeal. If the Supervisor feels the decision should be appealed, the
2 file should be documented as to the reasons and referred to the Claim Manager.
3 14. Upon review and approval by the Branch Manager, all decisions to appeal is fully
discussed with our Client. If appropriate, Client approval should be solicited and
4 documented.
5 II. Ancillary Services Provisions
6
b. Vendors
7
8 AMC coordinates Clients' vendor panels and approvals in advance and all referrals to vendors in
accordance with the Client's requirements as part of an integrated cost containment solution,
g which entails managing ancillary services. AMC can provide Clients with the flexibility to
customize a vendor panel or we can recommend vendors that have historically provided the best
10 outcome for our Clients. AMC does not have any limitation in working with outside vendors.
11 0 Ancillary Vendor Management. AIMS coordinates Clients' vendor panels and
12 • approvals in advance and all referrals to vendors in accordance with the Clients'
• requirements as part of an integrated cost containment solution, which entails
13 • managing ancillary services and coordinating programs such as
14 • Medical Bill Review
• Utilization Review
15 . Nurse Case Management
16 • Return to Work(includes on-site programs),
• Loss Control
17 • Workplace Safety
18 • Occupational Health Clinics
• Job Task Banks
19 • Employee Training and Medical Provider Networks (MPN)
20 Also, AIMS continuously evaluates vendor/ancillary services to ensure
21 performance-levels and continued value-add to our clients.
22 AIMS has created an integrated referral platform called AIMS Rapid Referral
Program (ARRP) to expedite this process of referral coordination between vendors
23 and AIMS examiners. The process integrates information directly from the AIMS
24 Claim System and uploads to the ARRP System. The ARRP System documents
the referral and uploads the forms into the AX Document Storage System.
25
26 c. Reserves
27
28 B-8
Exhibit B
1 If reserve changes are required, it is mandatory that the Examiners complete the Reserve
2 Worksheet inside of the Claims Management System.
3 Additionally, at the request of the Client, we provide notification of any reserve change that
exceeds a specified amount.
4
5 1. All reserves settings or changes are to be accompanied by a reserve computation analysis
form to be completed on the Ventiv System.
6 2. At the time of any reserve change, the Reserve Worksheet must reflect all rationale for any
increases/decreases. This document is the controlling information which supports the entered
7 changes
8 3. Reserves are to be set/reviewed at the following times:
a. File set up upon receipt of an Employer's First Report of injury or accident.
9 b. Receipt of medical information or a report indicating a change the status of the claim
(extending disability, finding of permanent residuals, vocational rehabilitation
10 potential, etc.)
11 c. Receipt of information indicating the claim will involve litigation or applicant's
counsel.
12 d. Upon completion of settlement negotiations.
13 e. Upon payment/reconciliation of an award.
f. Every 90-day Plan of Action Review
14 g. Upon notice of any fact which influences the dollar value of the claim.
15 h. In any event, no more than 3 months from the last reserve computation analysis form.
4. In cases where there is apportionment of permanent disability, reserves should be reduced to
16 the appropriate exposure only where legal apportionment has been established.
17 In reserving lifetime medical awards, determine the most accurate annual medical costs
18 and use the most current life expectancy table as the guide. Absent direction from the Client
and/or their Excess Insurance Provider, AIMS reviews
19 reserves on future medical claims every 180-days
20
21 Performance Time Frame Standards—Reserves:
22 TASK TIMEFRAME
23 Reserves At initial file setup. Within seven(7) days for any event
24 that triggers the need for a reserve change. Reserve
25 reviews required at a maximum of every ninety (90) days.
26 Status Reports/Plans of Action Every forty-five 90) days.
27
28 B-9
Exhibit B
1 Supervisory File Reviews At a maximum of every one hundred&twenty(120) days.
2
3 Home Office Reserve Notification Within one (1) day of any reserve change over$750,000.
4
5 Reserve worksheets are prepared to support any changes made in reserving amounts
6 and can be viewed by the County in support of a reserve increase or other change. If the County
7 desires, a custom report can be generated identifying all reserve changes
8 exceeding a specific amount.
9
III. Medical Management Provisions
10
11 Managed Care Services
12
First
13 Managed Care Service Offered Year Leased or
? Offered subcontracted?
14 (Yes/No (Yes/No. If yes,
15 specify rovider
a) Medical Bill Review (MBR) Yes 1995 Yes. We lease the
16 software CompIQ,
17 MC staff process
ills.
18 ) Preferred Provider Organization(PPO) Yes 1995 Yes.
19 c) Medical Provider Network(MPN) Yes 2005 No. AMC and Anthem
Blue Cross have
20 developed an MPN
unique to AMC and
21 only accessed by
22 AMC
d)Negotiation/Specialty Bill Review (SBR) Yes 1995 o.
23
24 NURSING SERVICES
25
AMC Telephonic Nurse Case Management
26 • Nurse provides Case Management Services by phone
• Nurse follows Client Specific guidelines regarding contacts, reporting, and
27 directing injured worker to medical providers etc.
28 B-10
Exhibit B
1 • Nurse provides reports in format approved by the Client
2 AMC Field and Catastrophic Nurse Case Management
• Nurse provides on-site Nurse Case Management
3 • Nurse goes on-Site with Medical Providers, Hospitals, Skill Nursing Facilities, and
Employers
4 • Nurse follows Client Specific guidelines regarding contacts, reporting, directing
5 injured worker to medical providers
• Nurse provides reports in format approved by the Client
6 Early Intervention
7 Early Intervention is case management triaging for all referrals. The triage involves an
initial medical investigation on new claims filed to determine if case management services would
8 add value to the claim and yield an overall cost savings. If so, the claim is assigned to a Case
Manager who works in conjunction with the Claims Examiner assigned to the file. If not, the
9 claim is referred on to the Claims Examiner for exclusive handling.
10 Claims Advice Nurses (CAN-do)
This program, makes available, Shannon Buelna Director of Utilization Review (UR)to
11 answer questions directly from Claims Examiners and Clients without having to send
something through Utilization Review. This helps in educating the Claims Examiner and
12 saves our client's money if something does not have to go through the UR process. The theory
13 behind this program is that many times the Claims Examiner comes across a scenario that they
are not too sure how to manage. The Claims Examiner can pick up the phone and run it by a
14 knowledgeable person. Sometimes the answer will be "Send it
through UR."however; many times, the answer will be advice about the meaning of the
15 request, how the scenario fits with the rest of the claim, or that the Claims Examiner may
16 authorize the request.
At AMC, workers' compensation medical cost containment programs are our one and only
17 business.
18 Medical Case Management Services:AMC believes the simplest way to contain
1 g medical care costs for injured workers is to control medical treatment and care from the
onset of the claim. At AMC, early intervention is stressed to assure optimal treatment
20 plans that maximize outcomes. Our medical case management integrates with and
supports the Client's cost containment goals and objectives. This customized approach
21 establishes referral criteria and incorporates a combination of case management skill sets unique
22 to your organization. AMC uses only those services you need, and only those that will facilitate
achieving medical stability at the best possible cost.
23
24 Additionally:
25 Nurse Triage Program/Newly Reported Claims: Under a separate fee structure
arrangement, the County of Fresno can utilize AIMS' proprietary workplace injury Nurse
26 Triage Program. This service is immediate telephonic nurse case management
27 intervention. Based on established triggers by the County the claim will be immediately
28 B-11
Exhibit B
1 assigned and managed by a Telephonic Nurse Case Manager. This service provides the injured
2 employee with medical resources to help them navigate through a complicated system with
confidence that their issues/concerns are being addressed. This program is also effective in
3 reducing friction that helps reduce litigation costs.
4 24/7 Call Center(Nurse Advice): Under a separate fee structure arrangement, the
5 County can utilize our 24/7 Injury Reporting Service including Nurse Advice via
CarivaCare. This service provides a detailed intake of all newly report injuries and
6 treatment advice by a Registered Nurse. The Registered Nurse, following medically
approved Algorithm will referral the injured workers to the proper level of care.
7 • Self Help Advice
8 • Referral to Telemedicine if appropriate and Client participates in this program
• Referral to Designated Clinic for the Client
9 • Referral to Medical Provider Network(MPN), if appropriate
10 • Triage Report sent to Claims team, Employer, treating provider
Calls are recorded and stored for up to a year 24/7 Call Center(Nurse Advice)
11 •
12 Telemedicine Referral: When the County participates in the 24/7 Call Center(Nurse
13 Advice) Program listed above, a Telemedicine Program can be implemented as part of
this service. The Telemedicine Program has no additional cost associated with it that is
14 over and/or above the fee schedule charges for an office visit. This service provides for
the Registered Nurse to evaluate the reported injury and determine if Telemedicine is an
15 appropriate treatment option.
16
AIMS has partnered with Concentra and their Telemedicine Department to offer this
17 efficient and thorough treatment option. The Injury Reporting Service handles the
Telemedicine Referral to Concentra and provides the Injured Worker with all the
18 necessary information to participate in this type of office visit. When incorporated with the
19 Injury Reporting Service approximately 75% of newly reported injuries were handled via
Telemedicine visits to conclusion of the claim. This program eliminates wait times and keeps the
20 injured worker at work. It should also be noted that the 24/7 Call Center is integrated with AIMS'
21 Claims Management System, so it eliminates the need for
the County to complete the 5020 and upload to AIMS. The Injury Reporting Service will
22 also refer injured worker to the County's MPN and provide a Pharmacy Benefit First Fill
Card. This service is truly integrated with all of the existing AIMS programs and fully
23 supports the efforts to provided efficient and effective medical services on an industrial
24 basis to the County.
25
26
27
28 B-12
Exhibit C
1 COMPENSATION
2 The Contractor will be compensated for performance of its services under this Agreement
3 as provided in this Exhibit C. The Contractor is not entitled to any compensation except as
4 expressly provided in this Exhibit C.
5
A. County agrees to pay Contractor and Contractor agrees to receive compensation as
6
follows:
7
8 Summary of Maximum Compensation
9 3-Year Year 4* Year 5*
Year 1 Year 2 Year 3 Maximum
10 Fee Maximum compensation
not to exceed
11 Description 2023 2024 2025 2026 2027
12 Claims $1,461,972 $1,505,831 $1,551,006 $4,518,809 $1,597,536 $1,645,462 $7,761,807
13 Administration
14 Ancillary $878,894 $878,894 $878,894 $2,636,682 $878,894 $878,894 $4,394,470
15
Services
16
Medical $24,000 $24,000 $24,000 $72,000 $24,000 $24,000 $120,000
17
Provider
18
Network
19
20 Total $2,364,866 $2,408,725 $2,453,900 $7,227,491 $2,500,430 $2,548,356 $12,276,277
21
22 *Provided that the term of this Agreement is extended pursuant to Section 4.2, "Extension."
23
24 B. The services included in the annual costs cited in this section include,but are not
25 limited to, fees for claims administration, medical bill review, utilization review,
26 CMS/MMSEA Section 111 reporting, nurse case management/advocate, and medical
27
provider network services. Annual costs shall include all services, as identified herein
28
and in Contractor's response.
C-1
Exhibit C
1 C. Payment for services will be processed as follows:
2 1. Claims administration services will be paid at a monthly rate of$121,831 for the
3 first year. Claims administration services will be paid at a monthly rate of
4 $125,485.91 for the first eleven (11)months of the second year, and at
5
$125,485.99 for the last month of the second year. Claims administration services
6
will be paid at a monthly rate of$129,250.50 for the third year. Ancillary services
7
8 shall be billed to the workers' compensation trust account at a monthly rate of
9 $73,241.16 for the first eleven (11) months of the year, and at $73,241.24 for the
10 last month of the year and shall be allocated to individual claims processed during
11 that month. MPN services will be paid at a monthly rate of$2,000 for the term of
12 this Agreement. In no event shall compensation for the services performed under
13 this Agreement be in excess of$6,844.025 during the initial three-year term of
14 this Agreement.
15 2. Should the term of this Agreement be extended by the parties pursuant to Section
16 4.2, "Extension," for the two additional one-year renewals, the maximum
17
compensation for all services, including claims administration, ancillary services,
18
and MPN, shall not exceed$2,500,430 for the first renewal year(i.e., the fourth
19
20 year) and$2,548,356 for the second renewal year(i.e., the fifth year). In the
21 renewal period, claims administration services will be paid at a monthly rate of
22 $133,128 for the first renewal year. Claims administration services will be paid at
23 the monthly rate of$137,121.83 for the first eleven(11) months of the second
24 renewal year, and at$137,121.87 for the last month of the second renewal year.
25 Ancillary services shall be billed to the workers' compensation trust account at
26 the monthly rate of$73,241.16 for the first eleven (11) months of a renewal year,
27 and at $73,241.24 for the last month of a renewal year and shall be allocated to
28
C-2
Exhibit C
1 individual claims processes during that month. MPN services will be paid at a
2 monthly rate of$2,000 during any renewal year.
3 3. It is understood that all expenses incidental to Contractor's performance of
4 services and obligations under this Agreement shall be borne by Contractor.
5
D. Allocated Loss Expense, including fees imposed by the Workers' Compensation
6
Appeals Board or the courts, fees for service of process, costs associated with
7
8 attorneys, including but not limited to attorney's fees and costs of outside counsel
9 engaged by County as referenced herein, and any attorney's fees and costs of any
10 attorneys of any claimants arising out of the resolution of any claim against County,
11 independent investigators, expert witnesses,photographs, diagrams, video tape,
12 transcripts, copying of subpoenaed records, court reporters, depositions, medical case
13 management, or any other cost necessarily incurred in the defense and payment of
14 claims and payment of services or supplies not identified in this Agreement, is not
15 included in the compensation set forth herein and are agreed by the parties to be
16 expenses incidental to Contractor's performance of services and obligations under
17
this Agreement and shall be the sole responsibility of Contractor.
18
19
20
21
22
23
24
25
26
27
28
C-3
Exhibit D
1 Self-Dealing Transaction Disclosure Form
2 In order to conduct business with the County of Fresno ("County"), members of a
3 contractor's board of directors ("County Contractor"), must disclose any self-dealing
transactions that they are a party to while providing goods, performing services, or both for the
4 County. A self-dealing transaction is defined below:
5 "A self-dealing transaction means a transaction to which the corporation is a party and in
6 which one or more of its directors has a material financial interest."
7 The definition above will be used for purposes of completing this disclosure form.
8 Instructions
9 (1) Enter board member's name,job title (if applicable), and date this disclosure is being
made.
10
(2) Enter the board member's company/agency name and address.
11
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
12 County. At a minimum, include a description of the following:
13 a. The name of the agency/company with which the corporation has the transaction;
14 and
15 b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
16
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
17 provisions of the Corporations Code.
18 The form must be signed by the board member that is involved in the self-dealing
19 transaction described in Sections (3) and(4).
20
21
22
23
24
25
26
27
28
D-1
Exhibit D
1 (1) Company Board Member Information:
2 Name: Date:
3 Job Title:
4 (2) Company/Agency Name and Address:
5
6
7
8
9
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party
10 to)
11
12
13
14
15
16
(4) Explain why this self-dealing transaction is consistent with the requirements of
17 Corporations Code § 5233 (a)
18
19
20
21
22
23
24 (5)Authorized Signature
25 Signature: Date:
26
27
28
D-2
Exhibit E
1 Insurance Requirements
2 1. Required Policies
3 Without limiting the County's right to obtain indemnification from the Contractor or any third
4 parties, Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
5
(A)Commercial General Liability. Commercial general liability insurance with limits of
6 not less than Two Million Dollars ($2,000,000)per occurrence and an annual aggregate
7 of Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence
basis. Coverage must include products, completed operations, property damage,bodily
8 injury, personal injury, and advertising injury. The Contractor shall obtain an
9 endorsement to this policy naming the County of Fresno, its officers, agents, employees,
and volunteers, individually and collectively, as additional insureds, but only insofar as
10 the operations under this Agreement are concerned. Such coverage for additional insureds
11 will apply as primary insurance and any other insurance, or self-insurance, maintained by
the County is excess only and not contributing with insurance provided under the
12 Contractor's policy.
13 (B)Automobile Liability.Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000)per occurrence for bodily injury and for property damages.
14 Coverage must include any auto used in connection with this Agreement.
15 (C)Workers Compensation. Workers compensation insurance as required by the laws of
16 the State of California with statutory limits.
17 (D)Employer's Liability. Employer's liability insurance with limits of not less than One
18 Million Dollars ($1,000,000)per occurrence for bodily injury and for disease.
(E) Professional Liability. Professional liability insurance with limits of not less than One
19 Million Dollars ($1,000,000)per occurrence and an annual aggregate of Three Million
20 Dollars ($3,000,000). If this is a claims-made policy, then(1)the retroactive date must be
prior to the date on which services began under this Agreement; (2)the Contractor shall
21 maintain the policy and provide to the County annual evidence of insurance for not less
22 than five years after completion of services under this Agreement; and(3) if the policy is
canceled or not renewed, and not replaced with another claims-made policy with a
23 retroactive date prior to the date on which services begin under this Agreement, then the
24 Contractor shall purchase extended reporting coverage on its claims-made policy for a
minimum of five years after completion of services under this Agreement.
25
(F) Technology Professional Liability (Errors and Omissions). Technology professional
26 liability (errors and omissions) insurance with limits of not less than Two Million Dollars
27 ($2,000,000)per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
28 involving Cyber Risks.
E-1
Exhibit E
1 (G)Cyber Liability. Cyber liability insurance with limits of not less than Two Million
2 Dollars ($2,000,000)per occurrence. Coverage must include claims involving Cyber
Risks. The cyber liability policy must be endorsed to cover the full replacement value of
3 damage to, alteration of, loss of, or destruction of intangible property (including but not
4 limited to information or data)that is in the care, custody, or control of the Contractor.
5 Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
6 Party; (ii) data breach; (iii)breach of any of the Contractor's obligations under Exhibit E
this Agreement; (iv) system failure; (v) data recovery; (vi) failure to timely disclose data
7 breach or Security Breach; (vii) failure to comply with privacy policy; (viii)payment
8 card liabilities and costs; (ix) infringement of intellectual property, including but not
limited to infringement of copyright, trademark, and trade dress; (x) invasion of privacy,
9 including release of private information; (xi) information theft; (xii) damage to or
10 destruction or alteration of electronic information; (xiii) cyber extortion; (xiv) extortion
related to the Contractor's obligations under this Agreement regarding electronic
11 information, including Personal Information; (xv) fraudulent instruction; (xvi) funds
12 transfer fraud; (xvii) telephone fraud; (xviii) network security; (xix) data breach response
costs, including Security Breach response costs; (xx) regulatory fines and penalties
13 related to the Contractor's obligations under this Agreement regarding electronic
14 information, including Personal Information; and (xxi) credit monitoring expenses.
15 2. Additional Requirements
16 (A)Verification of Coverage. Within 30 days after the Contractor signs this Agreement, and
17 at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
18 broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
19 Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement, certificates
20 of insurance and endorsements for all of the coverages required under this Agreement.
21 (i) Each insurance certificate must state that: (1)the insurance coverage has been
22 obtained and is in full force; (2) the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and(3)the
23 Contractor has waived its right to recover from the County, its officers, agents,
24 employees, and volunteers any amounts paid under any insurance policy required
by this Agreement and that waiver does not invalidate the insurance policy.
25
(ii) The commercial general liability insurance certificate must also state, and include
26 an endorsement, that the County of Fresno, its officers, agents, employees, and
27 volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
28 insurance certificate must also state that the coverage shall apply as primary
E-2
Exhibit E
1 insurance and any other insurance, or self-insurance, maintained by the Count
2 shall be excess only and not contributing with insurance provided under the
Contractor's policy.
3
(iii) The automobile liability insurance certificate must state that the policy covers any
4 auto used in connection with this Agreement.
5 (iv) The professional liability insurance certificate, if it is a claims-made policy, must
6 also state the retroactive date of the policy, which must be prior to the date on
which services began under this Agreement.
7 (v) The technology professional liability insurance certificate must also state that
8 coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined
9 in this Agreement.
10 (vi) The cyber liability insurance certificate must also state that it is endorsed, and
11 include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property(including but not
12 limited to information or data)that is in the care, custody, or control of the
13 Contractor.
14 (B)Acceptability of Insurers.All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
15 possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
16 less than A: VII.
17 (C)Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
18 the insurer to provide to the County, written notice of any cancellation or change in the
19 policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to,provide written notice to the
20 County not less than 10 days in advance of cancellation. For cancellation of the policy for
21 any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to,provide written notice to the County not less than 30 days in advance
22 of cancellation or change. The County in its sole discretion may determine that the failure
23 of the Contractor or its insurer to timely provide a written notice required by this
paragraph is a breach of this Agreement.
24
(D)County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
25 with broader coverage, higher limits, or both, than what is required under this Agreement,
26 then the County requires and is entitled to the broader coverage, higher limits, or both. To
that end, the Contractor shall deliver, or cause its broker or producer to deliver, to the
27 County's Risk Manager certificates of insurance and endorsements for all of the
28 coverages that have such broader coverage, higher limits, or both, as required under this
Agreement.
E-3
Exhibit E
1 (E)Waiver of Subrogation. The Contractor waives any right to recover from the County, its
2 officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
3 responsible to obtain any policy endorsement that may be necessary to accomplish that
4 waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
5 (F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
6 in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend or terminate this Agreement
7 upon the occurrence of that failure, or purchase such insurance coverage, and charge the
8 cost of that coverage to the Contractor. The County may offset such charges against any
9 amounts owed by the County to the Contractor under this Agreement.
(G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
10 the Contractor to provide services under this Agreement maintain insurance meeting all
11 insurance requirements provided in this Agreement. This paragraph does not authorize
12 the Contractor to provide services under this Agreement using subcontractors.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
E-4
Exhibit F
1 Confidentiality and Data Security
2 1. Definitions
3 Capitalized terms used in this Exhibit F have the meanings set forth in this section 1.
4 a. "Authorized Employees"means the Contractor's employees who have access to
5 Personal Information or Privileged Information.
6 b. "Authorized Persons"means: (i) any and all Authorized Employees; and(ii) any and all
of the Contractor's subcontractors, representatives, agents, outsourcers, and consultants,
7 and providers of professional services to the Contractor, who have access to Personal
8 Information and are bound by law or in writing by confidentiality obligations sufficient to
protect Personal Information in accordance with the terms of this Exhibit F.
9
c. "Director"means the County's Director Internal Services/Chief Information officer or
10 their designee.
11 d. "Disclose" or any derivative of that word means to disclose, release, transfer,
12 disseminate, or otherwise provide access to or communicate all or any part of any
Personal Information orally, in writing, or by electronic or any other means to any
13 person.
14 e. "Person"means any natural person, corporation,partnership, limited liability company,
15 firm, or association.
16 f. "Personal Information"means any and all information, including any data,provided, or
to which access is provided, to the Contractor by or upon the authorization of the County,
17 under this Agreement, including but not limited to vital records, that: (i) identifies,
18 describes, or relates to, or is associated with, or is capable of being used to identify,
describe, or relate to, or associate with, a person (including, without limitation, names,
19 physical descriptions, signatures, addresses, telephone numbers, e-mail addresses,
education, financial matters, employment history, and other unique identifiers, as well as
20 statements made by or attributable to the person); (ii) is used or is capable of being used
21 to authenticate a person (including, without limitation, employee identification numbers,
government-issued identification numbers,passwords or personal identification numbers
22 (PINs), financial account numbers, credit report information, answers to security
23 questions, and other personal identifiers); or(iii) is personal information within the
meaning of California Civil Code section 1798.3, subdivision(a), or 1798.80, subdivision
24 (e). Personal Information does not include publicly available information that is lawfully
25 made available to the general public from federal, state, or local government records.
26 g. "Privacy Practices Complaint"means a complaint received by the County relating to
the Contractor's (or any Authorized Person's)privacy practices or alleging a Security
27 Breach. Such complaint shall have sufficient detail to enable the Contractor to promptly
28 investigate and take remedial action under this Exhibit F.
F-1
Exhibit F
1 h. "Privileged Information"means any and all information, including any data,provided,
2 or to which access is provided, to the Contractor by or upon the authorization of the
County or any attorney of the County,under this agreement, including but not limited to
3 any or all of the following: (i)records pertaining to pending litigation to which the
4 County is party, or to claims made pursuant to the Government Claims Act (Gov. Code,
Tit. 1, Div. 3.6,beginning with section 810), until the pending litigation or claim has
5 been finally adjudicated or otherwise settled, which are exempt from disclosure under
Government Code section 6254, subdivision(b); (ii) any information that is subject to the
6 attorney-client privilege, which includes but is not limited to a"confidential
7 communication between client and lawyer," as that term is defined in Evidence Code
section 952, where the County is the client and any attorney of the County is the lawyer,
8 and the Contractor may be serving as a representative of the County, as an intermediate
g representative for communication between the County and any attorney of the County, or
both; or(iii) both (i) and(ii).
10
11 For purposes of a"confidential communication between client and lawyer"under this
Agreement, the Contractor is presumed to be present to further the interest of the County
12 in its consultation with an attorney of the County, reasonably necessary for the
13 transmission of the information or the accomplishment of the purpose for which the
attorney of the County is consulted, or both.
14
15 The Contractor acknowledges that the attorney-client privilege protecting Privileged
Information belongs to the County and may only be waived by the County's Board of
16 Supervisors, and may not be waived by any other County official. The Contractor has no
17 right or authority to waive the attorney-client privilege that belongs to the County.
18 i. "Security Safeguards"means physical, technical, administrative or organizational
security procedures and practices put in place by the Contractor(or any Authorized
19 Persons)that relate to the protection of the security, confidentiality, value, or integrity of
20 Personal Information. Security Safeguards shall satisfy the minimal requirements set
forth in section 3(C) of this Exhibit F.
21
j. "Security Breach"means (i) any act or omission that compromises either the security,
22 confidentiality, value, or integrity of any Personal Information or the Security
23 Safeguards, or(ii) any unauthorized Use, Disclosure, or modification of, or any loss or
destruction of, or any corruption of or damage to, any Personal Information.
24 k. "Use" or any derivative of that word means to receive, acquire, collect, apply,
25 manipulate, employ,process, transmit, disseminate, access, store, disclose, or dispose of
Personal Information.
26
2.Standard of Care
27
28
F-2
Exhibit F
1 a. The Contractor acknowledges that, in the course of its engagement by the County under
2 this Agreement, the Contractor, or any Authorized Persons, may Use Personal
Information and Privileged Information only as permitted in this Agreement.
3
b. The Contractor acknowledges that Personal Information and Privileged Information is
4 deemed to be confidential information of, or owned by, the County(or persons from
5 whom the County receives or has received Personal Information) and is not confidential
information of, or owned or by, the Contractor, or any Authorized Persons. The
6 Contractor further acknowledges that all right, title, and interest in or to the Personal
Information or the Privileged Information remains in the County(or persons from whom
7 the County receives or has received Personal Information or Privileged Information)
8 regardless of the Contractor's, or any Authorized Person's, Use of that Personal
9 Information or that Privileged Information.
10 c. The Contractor agrees and covenants in favor of the Country that the Contractor shall:
i. keep and maintain all Personal Information and all Privileged Information in strict
11 confidence,using such degree of care under this section 2 as is reasonable and
12 appropriate to avoid a Security Breach;
13 ii. Use Personal Information exclusively for the purposes for which the Personal
Information is made accessible to the Contractor pursuant to the terms of this
14 Exhibit F;
15 iii. Use Privileged Information exclusively for the purposes for which the Privileged
16 Information is made accessible to the Contractor pursuant to the terms of this
Exhibit F;
17
iv. not Use, Disclose, sell, rent, license, or otherwise make available Personal
18 Information or Privileged Information for the Contractor's own purposes or for
19 the benefit of anyone other than the County, without the County's express prior
written consent, which the County may give or withhold in its sole and absolute
20 discretion;
21 V. not, directly or indirectly, Disclose Personal Information to any person (an
22 "Unauthorized Third Party") other than Authorized Persons pursuant to this
Agreement, without the express prior written consent the Director; and
23
vi. not, directly or indirectly, Disclose Privileged Information to any person(an
24 "Unauthorized Third Party") other than Authorized Persons pursuant to this
25 Agreement, without the express prior written consent of the County's Board of
Supervisors.
26
d. Notwithstanding the foregoing paragraph, in any case in which the Contractor believes it,
27 or any Authorized Person, is required to disclose Personal Information or Privileged
28 Information to government regulatory authorities, or pursuant to a legal proceeding, or
otherwise as may be required by applicable law, Contractor shall (i) immediately notify
F-3
Exhibit F
1 the County of the specific demand for, and legal authority for the disclosure, including
2 providing County with a copy of any notice, discovery demand, subpoena, or order, as
applicable, received by the Contractor, or any Authorized Person, from any government
3 regulatory authorities, or in relation to any legal proceeding, and(ii)promptly notify the
4 County before such Personal Information is offered by the Contractor for such disclosure
so that the County may have sufficient time to obtain a court order or take any other
5 action the County may deem necessary to protect the Personal Information or the
Privileged Information from such disclosure, and the Contractor shall cooperate with the
6 County to minimize the scope of such disclosure of such Personal Information or
7 Privileged Information.
8 e. The Contractor shall remain liable to the County for the actions and omissions of any
Unauthorized Third Party concerning its Use of such Personal Information or Privileged
9 Information as if they were the Contractor's own actions and omissions.
10 3.Information Security
11 a. The Contractor covenants, represents and warrants to the County that the Contractor's
12 Use of Personal Information and Privileged Information under this Agreement does and
will at all times comply with all applicable federal, state, and local,privacy and data
13 protection laws, as well as all other applicable regulations and directives, including but
14 not limited to California Civil Code, Division 3, Part 4, Title 1.81 (beginning with section
1798.80), and the Song-Beverly Credit Card Act of 1971 (California Civil Code, Division
15 3, Part 4, Title 1.3, beginning with section 1747). If the Contractor Uses credit, debit or
16 other payment cardholder information, the Contractor shall at all times remain in
compliance with the Payment Card Industry Data Security Standard("PCI DSS")
17 requirements, including remaining aware at all times of changes to the PCI DSS and
18 promptly implementing and maintaining all procedures and practices as may be necessary
to remain in compliance with the PCI DSS, in each case, at the Contractor's sole cost and
19 expense.
20 b. The Contractor covenants, represents and warrants to the County that, as of the effective
21 date of this Agreement, the Contractor has not received notice of any violation of any
privacy or data protection laws, as well as any other applicable regulations or directives,
22 and is not the subject of any pending legal action or investigation by, any government
23 regulatory authority regarding same.
24 c. Without limiting the Contractor's obligations under section 3(A) of this Exhibit F, the
Contractor's (or Authorized Person's) Security Safeguards shall be no less rigorous than
25 accepted industry practices and, at a minimum, include the following:
26 i. limiting Use of Personal Information and Privileged Information strictly to the
27 Contractor's and Authorized Persons' personnel, including technical and
administrative personnel, who are necessary for the Contractor's or Authorized
28
F-4
Exhibit F
1 Persons' Use of the Personal Information or Privileged pursuant to this
2 Agreement.
3 ii. ensuring that all of the Contractor's connectivity to County computing systems
will only be through the County's security gateways and firewalls, and only
4 through security procedures approved upon the express prior written consent of
5 the Director;
6 iii. to the extent that they contain or provide access to Personal Information or
Privileged Information, (a) securing business facilities, data centers, paper files,
7 servers,back-up systems and computing equipment, operating systems, and
software applications, including,but not limited to, all mobile devices and other
8 equipment, operating systems, and software applications with information storage
9 capability; (b) employing adequate controls and data security measures,both
internally and externally, to protect(1)the Personal Information and the
10 Privileged Information from potential loss or misappropriation, or unauthorized
11 Use, and(2) the County's operations from disruption and abuse; (c)having and
maintaining network, device application, database and platform security; (d)
12 maintaining authentication and access controls within media, computing
13 equipment, operating systems, and software applications; and(e) installing and
maintaining in all mobile, wireless, or handheld devices a secure internet
14 connection, having continuously updated anti-virus software protection and a
15 remote wipe feature always enabled, all of which is subject to express prior
written consent of the Director;
16
iv. encrypting all Personal Information at advance encryption standards of Advanced
17 Encryption Standards (AES) of 128 bit or higher when Personal Information is (a)
18 stored on any mobile devices, including but not limited to hard disks,portable
storage devices, or remote installation, or(b) transmitted over public or wireless
19 networks (the encrypted Personal Information must be subject to password or pass
20 phrase, and be stored on a secure server and transferred by means of a Virtual
Private Network (VPN) connection, or another type of secure connection, all of
21 which is subject to express prior written consent of the Director);
22 V. strictly segregating Personal Information and Privileged Information from all
23 other information of the Contractor, including any Authorized Person, or anyone
with whom the Contractor or any Authorized Person deals so that Personal
24 Information and Privileged Information is not commingled with any other types
25 of information;
26 vi. having a patch management process including installation of all operating system
and software vendor security patches;
27
28
F-5
Exhibit F
1 vii. maintaining appropriate personnel security and integrity procedures and practices,
2 including,but not limited to, conducting background checks of Authorized
Employees consistent with applicable law; and
3
viii. providing appropriate privacy and information security training to Authorized
4 Employees.
5 d. During the term of each Authorized Employee's employment by the Contractor, the
6 Contractor shall cause such Authorized Employees to abide strictly by the Contractor's
obligations under this Exhibit F. The Contractor shall maintain a disciplinary process to
7 address any unauthorized Use of Personal Information or Privileged Information by any
8 Authorized Employee.
9 e. The Contractor shall, in a secure manner, backup daily, or more frequently if it is the
Contractor's practice to do so more frequently, Personal Information and Privileged
10 Information received from the County, and the County shall have immediate, real-time
access, at all times, to such backups via a secure, remote access connection provided by
11 the Contractor, through the Internet.
12 f. The Contractor shall provide the County with the name and contact information for each
13 Authorized Employee (including such Authorized Employee's work shift, and at least
one alternate Authorized Employee for each Authorized Employee during such work
14 shift) who shall serve as the County's primary security contact with the Contractor and
15 shall be available to assist the County twenty-four(24)hours per day, seven (7) days per
week as a contact in resolving the Contractor's and any Authorized Persons' obligations
16 associated with a Security Breach or a Privacy Practices Complaint.
17 g. The Contractor shall not knowingly include or authorize any Trojan Horse, back door,
18 time bomb, drop dead device, worm, virus, or other code of any kind that may disable,
erase, display any unauthorized message within, or otherwise impair any County
19 computing system, with or without the intent to cause harm.
20 4.Security Breach Procedures
21 a. Immediately upon the Contractor's awareness or reasonable belief of a Security Breach,
22 the Contractor shall (i) notify the Director of the Security Breach, such notice to be given
first by telephone at the following telephone number, followed promptly by email at the
23 following email address: (559) 600-6200/incidents@fresnocountyca.gov(which
24 telephone number and email address the County may update by providing notice to the
Contractor), and(ii)preserve all relevant evidence (and cause any affected Authorized
25 Person to preserve all relevant evidence) relating to the Security Breach. The notification
26 shall include, to the extent reasonably possible, the identification of each type and the
extent of Personal Information, Privileged Information, or both, that has been, or is
27 reasonably believed to have been,breached, including but not limited to, compromised,
28 or subjected to unauthorized Use, Disclosure, or modification, or any loss or destruction,
corruption, or damage.
F-6
Exhibit F
1 b. Immediately following the Contractor's notification to the County of a Security Breach,
2 as provided pursuant to section 4(A) of this Exhibit F, the Parties shall coordinate with
each other to investigate the Security Breach. The Contractor agrees to fully cooperate
3 with the County, including, without limitation:
4 i. assisting the County in conducting any investigation;
5 ii. providing the County with physical access to the facilities and operations
6 affected;
7 iii. facilitating interviews with Authorized Persons and any of the Contractor's other
employees knowledgeable of the matter; and
8 iv. making available all relevant records, logs, files, data reporting and other
9 materials required to comply with applicable law, regulation, industry standards,
10 or as otherwise reasonably required by the County.
11 To that end, the Contractor shall, with respect to a Security Breach, be solely responsible,
12 at its cost, for all notifications required by law and regulation, or deemed reasonably
13 necessary by the County, and the Contractor shall provide a written report of the
14 investigation and reporting required to the Director within 30 days after the Contractor's
15 discovery of the Security Breach.
16 c. County shall promptly notify the Contractor of the Director's knowledge, or reasonable
17 belief, of any Privacy Practices Complaint, and upon the Contractor's receipt of that
notification, the Contractor shall promptly address such Privacy Practices Complaint,
18 including taking any corrective action under this Exhibit F, all at the Contractor's sole
19 expense, in accordance with applicable privacy rights, laws, regulations and standards. In
the event the Contractor discovers a Security Breach, the Contractor shall treat the
20 Privacy Practices Complaint as a Security Breach. Within 24 hours of the Contractor's
21 receipt of notification of such Privacy Practices Complaint, the Contractor shall notify the
County whether the matter is a Security Breach, or otherwise has been corrected and the
22 manner of correction or determined not to require corrective action and the reason for that
determination.
23
24 d. The Contractor shall take prompt corrective action to respond to and remedy any Security
Breach and take mitigating actions, including but not limiting to, preventing any
25 reoccurrence of the Security Breach and correcting any deficiency in Security Safeguards
as a result of such incident, all at the Contractor's sole expense, in accordance with
26 applicable privacy rights, laws, regulations and standards. The Contractor shall reimburse
27 the County for all reasonable costs incurred by the County in responding to, and
mitigating damages caused by, any Security Breach, including all costs of the County
28 incurred relation to any litigation or other action described section 4(E) of this Exhibit F.
F-7
Exhibit F
1 e. The Contractor agrees to cooperate, at its sole expense, with the County in any litigation
2 or other action to protect the County's rights relating to Personal Information, Privileged
Information, or both, including the rights of persons from whom the County receives
3 Personal Information.
4 S.Oversight of Security Compliance
5 a. The Contractor shall have and maintain a written information security policy that
6 specifies Security Safeguards appropriate to the size and complexity of the Contractor's
operations and the nature and scope of its activities.
7 b. Upon the County's written request, to confirm the Contractor's compliance with this
8 Exhibit F, as well as any applicable laws, regulations and industry standards, the
9 Contractor grants the County or,upon the County's election, a third party on the
County's behalf, permission to perform an assessment, audit, examination or review of
10 all controls in the Contractor's physical and technical environment in relation to all
Personal Information and Privileged Information that is Used by the Contractor pursuant
11 to this Agreement. The Contractor shall fully cooperate with such assessment, audit or
12 examination, as applicable, by providing the County or the third party on the County's
behalf, access to all Authorized Employees and other knowledgeable personnel, physical
13 premises, documentation, infrastructure and application software that is Used by the
14 Contractor for Personal Information, Privileged Information, or both, pursuant to this
Agreement. In addition, the Contractor shall provide the County with the results of any
15 audit by or on behalf of the Contractor that assesses the effectiveness of the Contractor's
16 information security program as relevant to the security and confidentiality of Personal
Information Used by the Contractor or Authorized Persons during the course of this
17 Agreement under this Exhibit F.
18 c. The Contractor shall ensure that all Authorized Persons who Use Personal Information,
19 Privileged Information, or both, agree to the same restrictions and conditions in this
Exhibit F. that apply to the Contractor with respect to such Personal Information and
20 Privileged Information by incorporating the relevant provisions of this Exhibit F into a
21 valid and binding written agreement between the Contractor and such Authorized
Persons, or amending any written agreements to provide same.
22
6.Return or Destruction of Personal Information.Upon the termination of this Agreement,
23 the Contractor shall, and shall instruct all Authorized Persons to,promptly return to the County
24 all Personal Information and all Privileged Information, whether in written, electronic or other
form or media, in its possession or the possession of such Authorized Persons, in a machine
25 readable form used by the County at the time of such return, or upon the express prior written
26 consent of the Director, securely destroy all such Personal Information and all Privileged
Information, and certify in writing to the County that such Personal Information and Privileged
27 Information have been returned to the County or disposed of securely, as applicable. If the
28 Contractor is authorized to dispose of any such Personal Information or Privileged Information,
as provided in this Exhibit F, such certification shall state the date, time, and manner(including
F-8
Exhibit F
1 standard) of disposal and by whom, specifying the title of the individual. The Contractor shall
2 comply with all reasonable directions provided by the Director with respect to the return or
disposal of Personal Information and Privileged Information and copies of Personal Information
3 and Privileged Information. If return or disposal of such Personal Information or Privileged
4 Information, or copies of Personal Information or Privileged Information, is not feasible, the
Contractor shall notify the County according, specifying the reason, and continue to extend the
5 protections of this Exhibit F to all such Personal Information and Privileged Information, and
copies of Personal Information and Privileged Information. The Contractor shall not retain any
6 copy of any Personal Information or any Privileged Information after returning or disposing of
7 Personal Information and Privileged Information as required by this section 6. The Contractor's
obligations under this section 6 survive the termination of this Agreement and apply to all
8 Personal Information and Privileged Information that the Contractor retains if return or disposal
9 is not feasible and to all Personal Information and Privileged Information that the Contractor
may later discover in its possession or control.
10
7.Equitable Relief. The Contractor acknowledges that any breach of its covenants or obligations
11 set forth in this Exhibit F may cause the County irreparable harm for which monetary damages
12 would not be adequate compensation and agrees that, in the event of such breach or threatened
breach, the County is entitled to seek equitable relief, including a restraining order, injunctive
13 relief, specific performance and any other relief that may be available from any court, in addition
14 to any other remedy to which the County may be entitled at law or in equity. Such remedies shall
not be deemed to be exclusive but shall be in addition to all other remedies available to the
15 County at law or in equity or under this Agreement.
16 8.Indemnity. The Contractor shall defend, indemnify and hold harmless the County, its officers,
17 employees, and agents, (each, a"County Indemnitee") from and against any and all
infringement of intellectual property including,but not limited to infringement of copyright,
18 trademark, and trade dress, invasion of privacy, information theft, and extortion,unauthorized
19 Use, Disclosure, or modification of, or any loss or destruction of, or any corruption of or damage
to, Personal Information or Privileged Information, Security Breach response and remedy costs,
20 credit monitoring expenses, forfeitures, losses, damages, liabilities, deficiencies, actions,
21 judgments, interest, awards, fines and penalties (including regulatory fines and penalties), costs
22 or expenses of whatever kind, including attorneys' fees and costs, the cost of enforcing any right
to indemnification or defense under this Exhibit F and the cost of pursuing any insurance
23 providers, arising out of or resulting from any third party claim or action against any County
24 Indemnitee in relation to the Contractor's, its officers, employees, or agents, or any Authorized
Employee's or Authorized Person's,performance or failure to perform under this Exhibit F or
25 arising out of or resulting from the Contractor's failure to comply with any of its obligations
26 under this section 8. The provisions of this section 8 do not apply to the acts or omissions of the
County. The provisions of this section 8 are cumulative to any other obligation of the Contractor
27 to, defend, indemnify, or hold harmless any County Indemnitee under this Agreement. The
28 provisions of this section 8 shall survive the termination of this Agreement.
F-9
Exhibit F
1 9.Survival. The respective rights and obligations of the Contractor and the County as stated in
2 this Exhibit F shall survive the termination of this Agreement.
3 10.No Third-Party Beneficiary.Nothing express or implied in the provisions of in this Exhibit
f is intended to confer, nor shall anything in this Exhibit F confer, upon any person other than the
4 County or the Contractor and their respective successors or assignees, any rights, remedies,
5 obligations or liabilities whatsoever.
6 11.No County Warranty. The County does not make any warranty or representation whether
any Personal Information or Privileged Information in the Contractor's (or any Authorized
7 Person's)possession or control or Use by the Contractor(or any Authorized Person),pursuant to
the terms of this Agreement is or will be secure from unauthorized Use, or a Security Breach or
8 Privacy Practices Complaint.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
F-10
Exhibit G
1 Health Insurance Portability and Accountability Act(HIPAA)
2 1. The County is a"Covered Entity,"and the Contractor is a"Business Associate,"as
3 these terms are defined by 45 CFR 160.103. In connection with providing services under the
Agreement,the parties anticipate that the Contractor will create and/or receive Protected Health
4 Information("PHI") from or on behalf of the County. The parties enter into this Business Associate
5 Agreement(BAA)to comply with the Business Associate requirements of HIPAA,to govern the
use and disclosures of PHI under this Agreement. "HIPAA Rules" shall mean the Privacy, Security,
6 Breach Notification, and Enforcement Rules at 45 CFR Parts 160 and 164.
7 The parties to this Agreement shall be in strict conformance with all
applicable federal and State of California laws and regulations, including,but not limited to
$ California Welfare and Institutions Code sections 5328, 10850, and 14100.2 et seq.; 42 CFR 2; 42
9 CFR 431; California Civil Code section 56 et seq.;the Health Insurance Portability and
10 Accountability Act of 1996, as amended("HIPAA"), including,but not limited to,45 CFR
Parts 160,45 CFR 162, and 45 CFR 164;the Health Information Technology for Economic and
11 Clinical Health Act("HITECH")regarding the confidentiality and security of patient information,
12 including,but not limited to 42 USC 17901 et seq.; and the Genetic Information Nondiscrimination
Act("GINA")of 2008 regarding the confidentiality of genetic information.
13 Except as otherwise provided in this Agreement, the Contractor, as a business associate of the
14 County, may use or disclose Protected Health Information("PHI")to perform functions,
activities or services for or on behalf of the County, as specified in this Agreement, provided that
15 such use or disclosure shall not violate HIPAA Rules. The uses and disclosures of PHI may not
16 be more expansive than those applicable to the County, as the "Covered Entity"under the
17 HIPAA Rules, except as authorized for management, administrative or legal responsibilities of
the Contractor.
18 2. The Contractor, including its subcontractors and employees, shall protect from
19 unauthorized access,use,or disclosure of names and other identifying information, including
genetic information, concerning persons receiving services pursuant to this Agreement, except
20 where permitted in order to carry out data aggregation purposes for health care operations [45 CFR
21 §§ 164.504(e)(2)(i), 164.504(e)(2)(ii)(A), and 164.504(e)(4)(i)]. This pertains to any and all persons
receiving services pursuant to a County-funded program. This requirement applies to electronic
22 PHI. The Contractor shall not use such identifying information or genetic information for any
23 purpose other than carrying out the Contractor's obligations under this Agreement.
24 3. The Contractor, including its subcontractors and employees, shall not disclose any
such identifying information or genetic information to any person or entity, except as otherwise
25 specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part 164 or other law,
26 required by the Secretary of the United States Department of Health and Human Services
("Secretary"), or authorized by the client/patient in writing. In using or disclosing PHI that is
27 permitted by this Agreement or authorized by law,the Contractor shall make reasonable efforts to
28 limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure or request.
G-1
Exhibit G
1 4. For purposes of the above sections, identifying information shall include,but not be
2 limited to,name, identifying number, symbol, or other identifying particular assigned to the
individual, such as fingerprint or voiceprint, or photograph.
3 5. For purposes of the above sections, genetic information shall include genetic tests of
4 family members of an individual or individual(s),manifestation of disease or disorder of family
members of an individual,or any request for or receipt of genetic services by individual or family
5 members. Family member means a dependent or any person who is first, second,third, or fourth
6 degree relative.
6. The Contractor shall provide access, at the request of the County, and in the time and
7 manner designated by the County,to PHI in a designated record set(as defined in 45 CFR §
8 164.501),to an individual or to COUNTY in order to meet the requirements of 45 CFR§ 164.524
9 regarding access by individuals to their PHI. With respect to individual requests, access shall be
provided within thirty(30) days from request. Access may be extended if the Contractor cannot
10 provide access and provides the individual with the reasons for the delay and the date when access
11 may be granted. PHI shall be provided in the form and format requested by the individual or the
County.
12 The Contractor shall make any amendment(s) to PHI in a designated record set at the request of
13 the County or individual, and in the time and manner designated by the County in accordance
with 45 CFR § 164.526.
14 The Contractor shall provide to the County or to an individual, in a time and manner designated
15 by the County, information collected in accordance with 45 CFR § 164.528, to permit the County
16 to respond to a request by the individual for an accounting of disclosures of PHI in accordance
with 45 CFR § 164.528.
17 7. The Contractor shall report to the County, in writing, any knowledge or
18 reasonable belief that there has been unauthorized access, viewing, use, disclosure, security
incident, or breach of unsecured PHI not permitted by this Agreement of which the Contractor
19 becomes aware, immediately and without reasonable delay and in no case later than two (2)
20 business days of discovery. Immediate notification shall be made to the County's Information
Security Officer and Privacy Officer and the County's Department of Public Health ("DPH")
21 HIPAA Representative, within two (2)business days of discovery. The notification shall
22 include, to the extent possible, the identification of each individual whose unsecured PHI has
23 been, or is reasonably believed to have been, accessed, acquired, used, disclosed, or breached.
The Contractor shall take prompt corrective action to cure any deficiencies and any action
24 pertaining to such unauthorized disclosure required by applicable federal and State laws and
25 regulations. The Contractor shall investigate such breach and is responsible for all notifications
required by law and regulation or deemed necessary by the County and shall provide a written
26 report of the investigation and reporting required to the County's Information Security Officer
27 and Privacy Officer and the County's DPH HIPAA Representative.
This written investigation and description of any reporting necessary shall be postmarked
28 within the thirty(30)working days of the discovery of the breach to the addresses below:
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Exhibit G
1 County of Fresno County of Fresno County of Fresno
2 Department of Public Health Department of Public Health Department of Internal
HIPAA Representative Privacy Officer Services
3 (559) 600-6439 (559) 600-6405 Information Security Officer
4 P.O. Box 11867 P.O. Box 11867 (559) 600-5800
Fresno, California 93775 Fresno, California 93775 2048 North Fine Street
5 Fresno, California 93727
6 8. The Contractor shall make its internal practices, books, and records relating to the
use and disclosure of PHI received from the County, or created or received by the Contractor on
7 behalf of the County, in compliance with Parts the HIPAA Rules. The Contractor shall make its
8 internal practices, books, and records relating to the use and disclosure of PHI received from the
9 County, or created or received by the Contractor on behalf of the County, available to the
Secretary upon demand.
10 The Contractor shall cooperate with the compliance and investigation reviews conducted
11 by the Secretary. PHI access to the Secretary must be provided during the Contractor's normal
12 business hours; however, upon exigent circumstances access at any time must be granted. Upon
the Secretary's compliance or investigation review, if PHI is unavailable to the Contractor and in
13 possession of a subcontractor of the Contractor, the Contractor must certify to the Secretary its
14 efforts to obtain the information from the subcontractor.
9. Safeguards
15 The Contractor shall implement administrative,physical, and technical safeguards as
16 required by the HIPAA Security Rule, Subpart C of 45 CFR Part 164, that reasonably and
appropriately protect the confidentiality, integrity, and availability of PHI, including electronic
17 PHI, that it creates, receives, maintains or transmits on behalf of the County and to prevent
18 unauthorized access, viewing, use, disclosure, or breach of PHI other than as provided for by this
Agreement. The Contractor shall conduct an accurate and thorough assessment of the potential
19 risks and vulnerabilities to the confidentiality, integrity and availability of electronic PHI. The
20 Contractor shall develop and maintain a written information privacy and security program that
21 includes administrative, technical and physical safeguards appropriate to the size and complexity
of the Contractor's operations and the nature and scope of its activities. Upon the County's
22 request, the Contractor shall provide the County with information concerning such safeguards.
23 The Contractor shall implement strong access controls and other security safeguards and
precautions in order to restrict logical and physical access to confidential, personal (e.g., PHI) or
24 sensitive data to authorized users only. Said safeguards and precautions shall include the
25 following administrative and technical password controls for all systems used to process or store
confidential, personal, or sensitive data:
26 A. Passwords must not be:
27 (1) Shared or written down where they are accessible or recognizable by anyone
28 else, such as taped to computer screens, stored under keyboards, or visible in a
work area;
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Exhibit G
1 (2) A dictionary word; or
2 (3) Stored in clear text
B. Passwords must be:
3 (1) Eight(8) characters or more in length;
4 (2) Changed every ninety(90) days;
(3) Changed immediately if revealed or compromised; and
5 (4) Composed of characters from at least three (3) of the following four(4)
6 groups from the standard keyboard:
7 a) Upper case letters (A-Z);
b) Lowercase letters (a-z);
8 c) Arabic numerals (0 through 9); and
9 d) Non-alphanumeric characters (punctuation symbols).
The Contractor shall implement the following security controls on each workstation or
10 portable computing device (e.g., laptop computer) containing confidential, personal, or sensitive
11 data:
1. Network-based firewall and/or personal firewall;
12 2. Continuously updated anti-virus software; and
13 3. Patch management process including installation of all operating system/software
vendor security patches.
14 The Contractor shall utilize a commercial encryption solution that has received FIPS
15 140-2 validation to encrypt all confidential, personal, or sensitive data stored on portable
16 electronic media(including,but not limited to, compact disks and thumb drives) and on portable
computing devices (including, but not limited to, laptop and notebook computers).
17 The Contractor shall not transmit confidential,personal, or sensitive data via e-mail or other
18 internet transport protocol unless the data is encrypted by a solution that has been validated by
the National Institute of Standards and Technology (MIST) as conforming to the Advanced
19 Encryption Standard(AES) Algorithm. The Contractor must apply appropriate sanctions against
20 its employees who fail to comply with these safeguards. The Contractor must adopt procedures
for terminating access to PHI when employment of employee ends.
21 10. Mitigation of Harmful Effects
22 The Contractor shall mitigate, to the extent practicable, any harmful effect that is
23 suspected or known to the Contractor of an unauthorized access, viewing,use, disclosure, or
breach of PHI by the Contractor or its subcontractors in violation of the requirements of these
24 provisions. The Contractor must document suspected or known harmful effects and the
25 outcome.
11. The Contractor's Subcontractors
26 The Contractor shall ensure that any of its contractors, including subcontractors, if
27 applicable, to whom the Contractor provides PHI received from or created or received by the
Contractor on behalf of the County, agree to the same restrictions, safeguards, and conditions
28 that apply to the Contractor with respect to such PHI and to incorporate, when applicable, the
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Exhibit G
1 relevant provisions of these provisions into each subcontract or sub-award to such agents or
2 subcontractors.
Nothing in this section 1 I or this Exhibit G authorizes the Contractor to perform services
3 under this Agreement using subcontractors.
4 12. Employee Training and Discipline
The Contractor shall train and use reasonable measures to ensure compliance with the
5 requirements of these provisions by employees who assist in the performance of functions or
6 activities on behalf of the County under this Agreement and use or disclose PHI, and discipline
such employees who intentionally violate any provisions of these provisions, which may include
7 termination of employment.
8 13. Termination for Cause
9 Upon the County's knowledge of a material breach of these provisions by the Contractor,
the County will either:
10 A. Provide an opportunity for the Contractor to cure the breach or end the
11 violation, and the County may terminate this Agreement if the Contractor does not cure the
breach or end the violation within the time specified by the County; or
12 B. Immediately terminate this Agreement if the Contractor has breached a
13 material term of this Exhibit G and cure is not possible, as determined by the County.
C. If neither cure nor termination is feasible, the County's Privacy Officer
14 will report the violation to the Secretary of the U.S. Department of Health and Human Services.
15 14. Judicial or Administrative Proceedings
16 The County may terminate this Agreement if. (1) the Contractor is found guilty in a
criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH Act;
17 or(2)there is a finding or stipulation in an administrative or civil proceeding in which the
18 Contractor is a party that the Contractor has violated a privacy or security standard or
requirement of the HITECH Act, HIPAA or other security or privacy laws.
19 15. Effect of Termination
20 Upon termination or expiration of this Agreement for any reason, the Contractor shall
return or destroy all PHI received from the County(or created or received by the Contractor on
21 behalf of the County) that the Contractor still maintains in any form, and shall retain no copies of
22 such PHI. If return or destruction of PHI is not feasible, the Contractor shall continue to extend
23 the protections of these provisions to such information, and limit further use of such PHI to those
purposes that make the return or destruction of such PHI infeasible. This provision applies to
24 PHI that is in the possession of subcontractors or agents, if applicable, of the Contractor. If the
25 Contractor destroys the PHI data, a certification of date and time of destruction shall be provided
to the County by the Contractor.
26 16. Compliance with Other Laws
27 To the extent that other state and/or federal laws provide additional, stricter and/or more
protective privacy and/or security protections to PHI or other confidential information covered
28 under this BAA, the Contractor agrees to comply with the more protective of the privacy and
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Exhibit G
1 security standards set forth in the applicable state or federal laws to the extent such standards
2 provide a greater degree of protection and security than HIPAA Rules or are otherwise more
favorable to the individual.
3 17. Disclaimer
4 The County makes no warranty or representation that compliance by the Contractor with
these provisions, the HITECH Act, or the HIPAA Rules, will be adequate or satisfactory for the
5 Contractor's own purposes or that any information in the Contractor's possession or control, or
6 transmitted or received by the Contractor, is or will be secure from unauthorized access, viewing,
use, disclosure, or breach. The Contractor is solely responsible for all decisions made by the
7 Contractor regarding the safeguarding of PHI.
8 18. Amendment
The parties acknowledge that Federal and State laws relating to electronic data security
9 and privacy are rapidly evolving and that amendment of this Exhibit G may be required to
10 provide for procedures to ensure compliance with such developments. The parties specifically
11 agree to take such action as is necessary to amend this agreement in order to implement the
standards and requirements of the HIPAA Rules, the HITECH Act and other applicable laws
12 relating to the security or privacy of PHI. The County may terminate this Agreement upon thirty
13 (30) days written notice in the event that the Contractor does not enter into an amendment
providing assurances regarding the safeguarding of PHI that the County in its sole discretion,
14 deems sufficient to satisfy the standards and requirements of the HIPAA Rules, and the HITECH
15 Act.
19. No Third-Party Beneficiaries
16 Nothing expressed or implied in the provisions of this Exhibit G is intended to confer,
17 and nothing in this Exhibit G does confer,upon any person other than the County or the
18 Contractor and their respective successors or assignees, any rights, remedies, obligations or
liabilities whatsoever.
19 20. Interpretation
20 The provisions of this Exhibit G shall be interpreted as broadly as necessary to implement
and comply with the HIPAA Rules, and applicable State laws. The parties agree that any
21 ambiguity in the terms and conditions of these provisions shall be resolved in favor of a meaning
22 that complies and is consistent with the HIPAA Rules.
21. Regulatory References
23 A reference in the terms and conditions of these provisions to a section in the HIPAA
24 Rules means the section as in effect or as amended.
22. Survival
25 The respective rights and obligations of the Contractor as stated in this Exhibit G survive
26 the termination or expiration of this Agreement.
27 23. No Waiver of Obligation
Change, waiver or discharge by the County of any liability or obligation of the Contractor
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Exhibit G
1 under this Exhibit G on any one or more occasions is not a waiver of performance of any
2 continuing or other obligation of the Contractor and does not prohibit enforcement by the County
of any obligation on any other occasion.
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