120005 O5 Segal stacked.pdf

© 2025 by The Segal Group, Inc. All rights reserved.

State of Nebraska, Department of Administrative Services

Consulting and Actuarial Services Solicitation Number: 120005 O5

January 6, 2025

2727 Paces Ferry Road Suite 1400, Building One

Atlanta, Georgia 30339 segalco.com

T 678.306.3142 pklein@segalco.com

January 6, 2025

Connie Heinrichs and Brook Taylor Procurement Contract Officer(s) State of Nebraska, Department of Administrative Services 1526 K Street Suite 130 Lincoln, NE 68508

RE: Consulting and Actuarial Services to State of Nebraska, Department of Administrative Services

Dear Connie and Brook:

We appreciate the opportunity to present our proposal for Consulting and Actuarial Services to State of Nebraska, Department of Administrative Services (DAS). We trust that this proposal will demonstrate that Segal continues to be the best qualified to provide the requested benefits consulting.

The services defined in the RFP are core services that we provide daily to our clients. In our response, we will clearly demonstrate our philosophy, approach, and ability to meet your needs.

We recognize that each client is unique. With this in mind, our approach to any project will be tailored, paying particular attention to nuances of DAS’s benefits philosophy and culture. Segal has strived to be a trusted advisor to DAS throughout our nine-year relationship. Our focus has been providing customized consulting recommendations based on your goals, supported with data. We also pride ourselves on our responsiveness given the environment in which decision makers need information in a timely manner.

We strive to continue to be your long-term advisor and will work with DAS in a proactive partnership, advocating on behalf of you and your members. Our Atlanta team has a track record of success and client satisfaction.

As the Account Manager assigned to DAS, I affirm that I am legally authorized to bind Segal.

Our submission is intended to be fully compliant with the specifications of the proposal and be responsive to all questions. We look forward to discussing our proposal response with you in greater detail. Please feel free to contact me directly at 678.306.3142 or pklein@segalco.com.

Sincerely, Patrick J. Klein, FSA, MAAA Vice President & Consulting Actuary mailto:pklein@segalco.com i

Table of Contents Executive Summary

Contractual Agreement Form

II. Terms and Conditions

III. Vendor Duties

IV. Payment

V. C. Business Requirements

VI. Solicitation Response Instructions, 1. Corporate Overview

VI. Solicitation Response Instructions, 2. Technical Response

a. Understanding of the Project Requirements

b. Project development approach

c. Technical requirements

d. Detailed project work plan

e. Deliverables and due dates

Attachment A: Requirements Matrix Final Best practices database Emerging actuarial practices Plan Structure & Improvement

Form B, Cost Proposal

Appendix 1: Segal Team Resumes

Appendix 2: Sample Reports

Executive Summary Segal appreciates the opportunity to submit this proposal to continue providing consulting and actuarial services as described in the State of Nebraska, Department of Administrative Services (DAS) Request for Proposal (RFP).

We have responded to the DAS request for proposal utilizing a narrative approach, detailing every aspect of the scope of services and how Segal is the best qualified to provide these services to

DAS.

Understanding your needs As your consultant since 2016, we understand the challenges you face providing a comprehensive and cost-effective benefits package for your employees and families. Working with our Segal team, you have a partner who understands your needs, based on working closely with your Plan and your team over the past nine years.

Segal’s consulting philosophy and overall approach is highlighted by our commitment to our clients. By forming a partnership with our clients, we serve as both advisors and advocates and as a result, we ensure that our consulting services align with your strategic goals. We seek to be innovative and to accommodate the special requirements of each client, rather than merely replicating an approach that worked in another situation.

We understand the DAS is seeking a consultant to provide professional health and welfare consulting and actuarial services for the employee insurance benefits program which includes health, wellness, dental, vision, life, short- and long-term disability, flexible spending accounts, health savings account, and an employee assistance program.

Segal will continue to actively and proactively provide advice and guidance to help you manage your programs, meeting regularly with your team and vendors to ensure all objectives are on track. Staying focused on the long-term goals and objectives, and monitoring performance against those objectives, will provide the best outcomes for DAS.

We will partner with DAS to help prioritize projects, assist you in managing them and provide the technical assistance required for each. Our team is comprised of dedicated consultants, actuaries and analysts who are uniquely qualified to meet these demands.

The Segal team we propose to continue working with you has:

• Historical knowledge of Nebraska, the plan options and premium rates, and the reserve fund position

• All the talent and resources needed – including employee benefit consultants, actuaries, data analysts, pharmacy consultants, clinical consultants (MDs, RNs, and pharmacists), compliance and legal specialists, systems and process experts, and communication experts

• Capacity to work on your account and be available as needed

• Demonstrated experience through an array of client references and similar completed projects

Providing trusted advice that improves lives

The value we deliver to DAS Our proposal demonstrates how the State will benefit from a continued relationship with Segal because of our:

• Nebraska historical perspective: The Segal team that I lead has extensive knowledge of your special circumstances, gained through nine years of continued service. The Plan has undergone many strategic changes over the past decade, and your Segal team has worked closely with the DAS team in implementing the changes. Several notable changes include:

Establishing an incentive-based plan (WellNebraska – Wellness) that creatively meets federal requirements.

Generating a vast menu of potential plan design options that were integrated into a live model to help decision makers balance plan changes with funding requirements.

Adding new sections to the Annual Report to ensure the report stays relevant and fresh.

Providing guidance with various legislation and decision points throughout the National Public Health Emergency associated with COVID-19.

Completing a benchmarking study of your peer states.

Recommending a premium holiday to meet the goal of reducing surplus without lowering rates or enhancing plan designs, to mitigate future financial deficits.

Creating an experience monitoring tool, projecting monthly cash flows that vary with seasonality.

Analyzing the cost and benefits of the Strada Pilot Program as well as other pending legislation that impact the Plan.

• Looking forward: Based on our work with the DAS, we have a firm understanding of your internal department structure, plan of benefits and how the healthcare benefits impact the department’s human resources objectives – and that institutional knowledge helps guide the future as we navigate an increasingly complicated environment. We also understand the goals of DAS, simply to provide the most cost-effective benefits to your members, providing the best value possible.

• National resources with local, boutique service: DAS will continue to have the advantage of being serviced by national experts yet still receive the customized, “hands-on” service of a smaller firm from our local account team in Atlanta. We will also continue to provide complimentary access to firmwide research and expertise to help you in your role, from compliance updates about legislation that affects your plan, to publications and informative webinars to explain benefit developments, to sharing industry data and benchmarking, at no additional cost.

• Legislative and compliance expertise: Our in-house Compliance team ensures that you will continue to stay informed and prepared for late-breaking legislation and other issues.

• Unbiased consulting: Unlike other firms, we are an independent, private, employee-owned company. We do not have any stake in selling pre-packaged solutions or conflicts of interests from external ownership or affiliations. Our only goal is to continue to support the Plan.

Helping you manage changes

• Public sector leadership: Segal has been assisting public plans and employers for more than 70 years. Serving the public sector is the primary focus of your Segal team and is one of the pillars upon which our firm was founded. In addition to active participation and leadership in industry associations and conferences, we issue publications that are specific to the public sector community and typically include survey data of all 50 states. Your team has access to all of the Segal reports and webinars.

• Competitive pricing: We offer the customized, hands-on service of a small firm – while being backed by national research and benchmarking capabilities. This structure allows us to be efficient, nimble, and offer our high-value services for a competitive fee.

• Continuity of service: Because we are your Plan’s current consultant, there would be no service interruption or “ramp-up” time needed. We are also not proposing to change any members of your current team.

We look forward to extending our service relationship with DAS for the next contract and beyond.

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Contractual Agreement Form

SPB Form 22 | RFP Template | Effective 07192024

CONTRACTUAL AGREEMENT FORM

By signing this Contractual Agreement Form, the bidder guarantees compliance with the provisions stated in this solicitation and agrees to the terms and conditions unless otherwise indicated in writing and certifies that bidder is not owned by the Chinese Communist Party.

THIS FORM MUST BE SIGNED MANUALLY IN INK OR BY DOCUSIGN

COMPANY: The Segal Company (Southeast), Inc. d/b/a Segal

ADDRESS: One Paces West, 2727 Paces Ferry Road, Suite 1400, Atlanta, GA 30339

PHONE: 678-306-3142

EMAIL: pklein@segalco.com

BIDDER NAME & TITLE: Patrick Klein, Vice President & Consulting Actuary

SIGNATURE:

DATE: January 6, 2025

VENDOR COMMUNICATION WITH THE STATE CONTACT INFORMATION

(IF DIFFERENT FROM ABOVE)

NAME: Same as above

TITLE:

PHONE:

EMAIL:

BIDDER MUST COMPLETE THE FOLLOWING

Per Nebraska’s Transparency in Government Procurement Act, Neb. Rev Stat § 73-603, DAS is required to collect statistical information regarding the number of contracts awarded to Nebraska Vendors. This information is for statistical purposes only and will not be considered for contract award purposes.

_____ NEBRASKA VENDOR AFFIDAVIT: Bidder hereby attests that bidder is a Nebraska Vendor.

“Nebraska Vendor” shall mean any bidder who has maintained a bona fide place of business and at least one employee within this state for at least the six (6) months immediately preceding the posting date of this Solicitation. All vendors who are not a Nebraska Vendor are considered Foreign Vendors under Neb. Rev Stat § 73-603 (c).

_____ I hereby certify that I am a Resident disabled veteran or business located in a designated enterprise zone in accordance with Neb. Rev. Stat. § 73-107 and wish to have preference, if applicable, considered in the award of this contract.

_____ I hereby certify that I am a blind person licensed by the Commission for the Blind & Visually Impaired in accordance with Neb. Rev. Stat. § 71-8611 and wish to have preference considered in the award of this contract.

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II. Terms and Conditions

II. TERMS AND CONDITIONS

Bidder should read the Terms and Conditions within this section and must initial either “Accept All Terms and Conditions Within Section as Written” or “Exceptions Taken to Terms and Conditions Within Section as Written” in the table below. If the bidder takes any exceptions, they must provide the following within the “Exceptions” field of the table below (Bidder may provide responses in separate attachment if multiple exceptions are taken):

1. The specific clause, including section reference, to which an exception has been taken;

2. An explanation of why the bidder took exception to the clause; and

3. Provide alternative language to the specific clause within the solicitation response.

By signing the solicitation, bidder agrees to be legally bound by all the accepted terms and conditions, and any proposed alternative terms and conditions submitted with the solicitation response. The State reserves the right to negotiate rejected or proposed alternative language. If the State and bidder fail to agree on the final Terms and Conditions, the State reserves the right to reject the solicitation response. The State reserves the right to reject solicitation responses that attempt to substitute the bidder’s commercial contracts and/or documents for this solicitation.

Accept All Terms and Conditions

Within Section as

Written (Initial)

Exceptions Taken to

Terms and Conditions

Within Section as

Written (Initial)

Exceptions:

(Bidder must note the specific clause, including section reference, to which an exception has been taken, an explanation of why the bidder took exception to the clause, and provide alternative language to the specific clause within the solicitation response.)

PJK We take the same exceptions as we did in 2016.

Segal currently provides services to DAS. Accordingly, if Segal is determined to be the winning bidder, Segal proposes to continue providing services pursuant to contract terms and conditions that are substantively similar to the previously negotiated contract. Please note that our form contract has changed but we are willing to discuss any changes and tailor the agreement as appropriate under the circumstances.

The bidders should submit with their solicitation response any license, user agreement, service level agreement, or similar documents that the bidder wants incorporated in the Contract. The State will not consider incorporation of any document not submitted with the solicitation response as the document will not have been included in the evaluation process. These documents shall be subject to negotiation and will be incorporated as addendums if agreed to by the Parties.

If a conflict or ambiguity arises after the Addendum to Contract Award has been negotiated and agreed to, the Addendum to Contract Award shall be interpreted as follows:

1. If only one (1) Party has a particular clause, then that clause shall control,

2. If both Parties have a similar clause, but the clauses do not conflict, the clauses shall be read together,

3. If both Parties have a similar clause, but the clauses conflict, the State’s clause shall control.

A. GENERAL

1. The contract resulting from this Solicitation shall incorporate the following documents:

a. Solicitation, including any attachments and addenda;

b. Questions and Answers;

c. Bidder’s properly submitted solicitation response, including any terms and conditions or agreements submitted by the bidder;

d. Addendum to Contract Award (if applicable);and

e. Amendments to the Contract. (if applicable)

These documents constitute the entirety of the contract.

Unless otherwise specifically stated in a future contract amendment, in case of any conflict between the incorporated documents, the documents shall govern in the following order of preference with number one (1) receiving preference over all other documents and with each lower numbered document having preference over any higher numbered document: 1) Amendment to the executed Contract with the most recent dated amendment having the highest priority,

2) Executed Contract and any attached Addenda 3) Addendums to the solicitation and any Questions and Answers,

4) the original solicitation document and any Addenda or attachments, and 5) the Vendor’s submitted solicitation response, including any terms and conditions or agreements that are accepted by the State.

Unless otherwise specifically agreed to in writing by the State, the State’s standard terms and conditions, as executed by the State, shall always control over any terms and conditions or agreements submitted or included by the Vendor.

Any ambiguity or conflict in the contract discovered after its execution, not otherwise addressed herein, shall be resolved in accordance with the rules of contract interpretation as established in the State of Nebraska.

B. NOTIFICATION

Bidder and State shall identify the contract manager who shall serve as the point of contact for the executed contract.

Communications regarding the executed contract shall be in writing and shall be deemed to have been given if delivered personally; electronically, return receipt requested; or mailed, return receipt requested. All notices, requests, or communications shall be deemed effective upon receipt.

Either party may change its address for notification purposes by giving notice of the change and setting forth the new address and an effective date.

C. BUYER’S REPRESENTATIVE

The State reserves the right to appoint a Buyer's Representative to manage or assist the Buyer in managing the contract on behalf of the State. The Buyer's Representative will be appointed in writing, and the appointment document will specify the extent of the Buyer's Representative authority and responsibilities. If a Buyer's Representative is appointed, the bidder will be provided a copy of the appointment document and is expected to cooperate accordingly with the Buyer's Representative. The Buyer's Representative has no authority to bind the State to a contract, amendment, addendum, or other change or addition to the contract.

D. GOVERNING LAW (Nonnegotiable) Notwithstanding any other provision of this contract, or any amendment or addendum(s) entered into contemporaneously or at a later time, the parties understand and agree that, (1) the State of Nebraska is a sovereign state and its authority to contract is therefore subject to limitation by the State’s Constitution, statutes, common law, and regulation; (2) this contract will be interpreted and enforced under the laws of the State of Nebraska; (3) any action to enforce the provisions of this agreement must be brought in the State of Nebraska per state law; (4) the person signing this contract on behalf of the State of Nebraska does not have the authority to waive the State's sovereign immunity, statutes, common law, or regulations; (5) the indemnity, limitation of liability, remedy, and other similar provisions of the final contract, if any, are entered into subject to the State's Constitution, statutes, common law, regulations, and sovereign immunity; and, (6) all terms and conditions of the final contract, including but not limited to the clauses concerning third party use, licenses, warranties, limitations of liability, governing law and venue, usage verification, indemnity, liability, remedy or other similar provisions of the final contract are entered into specifically subject to the State's Constitution, statutes, common law, regulations, and sovereign immunity.

The Parties must comply with all applicable local, state, and federal laws, ordinances, rules, orders, and regulations.

E. BEGINNING OF WORK & SUSPENSION OF SERVICES

The bidder shall not commence any billable work until a valid contract has been fully executed by the State and the successful Vendor. The Vendor will be notified in writing when work may begin.

The State may, at any time and without advance notice, require the Vendor to suspend any or all performance or deliverables provided under this Contract. In the event of such suspension, the Contract Manager or POC, or their designee, will issue a written order to stop work. The written order will specify which activities are to be immediately suspended and the reason(s) for the suspension. Upon receipt of such order, the Vendor shall immediately comply with its terms and take all necessary steps to mitigate and eliminate the incurrence of costs allocable to the work affected by the order during the period of suspension. The suspended performance or deliverables may only resume when the State provides the Vendor with written notice that such performance or deliverables may resume, in whole or in part.

F. AMENDMENT

This Contract may be amended in writing, within scope, upon the agreement of both parties.

G. CHANGE ORDERS OR SUBSTITUTIONS

The State and the Vendor, upon the written agreement, may make changes to the contract within the general scope of the solicitation. Changes may involve specifications, the quantity of work, or such other items as the State may find necessary or desirable. Corrections of any deliverable, service, or work required pursuant to the contract shall not be deemed a change. The Vendor may not claim forfeiture of the contract by reasons of such changes.

The Vendor shall prepare a written description of the work required due to the change and an itemized cost sheet for the change. Changes in work and the amount of compensation to be paid to the Vendor shall be determined in accordance with applicable unit prices if any, a pro-rated value, or through negotiations. The State shall not incur a price increase for changes that should have been included in the Vendor’s solicitation response, were foreseeable, or result from difficulties with or failure of the Vendor’s solicitation response or performance.

No change shall be implemented by the Vendor until approved by the State, and the Contract is amended to reflect the change and associated costs, if any. If there is a dispute regarding the cost, but both parties agree that immediate implementation is necessary, the change may be implemented, and cost negotiations may continue with both Parties retaining all remedies under the contract and law.

In the event any good or service is discontinued or replaced upon mutual consent during the contract period or prior to delivery, the State reserves the right to amend the contract to include the alternate product at the same price.

***Vendor will not substitute any item that has been awarded without prior written approval of SPB***

H. RECORD OF VENDOR PERFORMANCE

The State may document the vendor’s performance, which may include, but is not limited to, the customer service provided by the vendor, the ability of the vendor, the skill of the vendor, and any instance(s) of products or services delivered or performed which fail to meet the terms of the purchase order, contract, and/or specifications. In addition to other remedies and options available to the State, the State may issue one or more notices to the vendor outlining any issues the State has regarding the vendor’s performance for a specific contract (“Contract Compliance Request”).

The State may also document the Vendor’s performance in a report, which may or may not be provided to the vendor (“Contract Non-Compliance Notice”). The Vendor shall respond to any Contract Compliance Request or Contract Non-Compliance Notice in accordance with such notice or request. At the sole discretion of the State, such Contract Compliance Requests and Contract Non-Compliance Notices may be placed in the State’s records regarding the vendor and may be considered by the State and held against the vendor in any future contract or award opportunity.

The record of vendor performance will be considered in any suspension or debarment action.

I. NOTICE OF POTENTIAL VENDOR BREACH

If Vendor breaches the contract or anticipates breaching the contract, the Vendor shall immediately give written notice to the State. The notice shall explain the breach or potential breach, a proposed cure, and may include a request for a waiver of the breach if so desired. The State may, in its discretion, temporarily or permanently waive the breach.

By granting a waiver, the State does not forfeit any rights or remedies to which the State is entitled by law or equity, or pursuant to the provisions of the contract. Failure to give immediate notice, however, may be grounds for denial of any request for a waiver of a breach.

J. BREACH

Either Party may terminate the contract, in whole or in part, if the other Party breaches its duty to perform its obligations under the contract in a timely and proper manner. Termination requires written notice of default and a thirty (30) calendar day (or longer at the non-breaching Party’s discretion considering the gravity and nature of the default) cure period. Said notice shall be delivered by email, delivery receipt requested; certified mail, return receipt requested; or in person with proof of delivery. Allowing time to cure a failure or breach of contract does not waive the right to immediately terminate the contract for the same or different contract breach which may occur at a different time.

The State’s failure to make payment shall not be a breach, and the Vendor shall retain all available statutory remedies.

(See Indemnity - Self-Insurance and Payment)

K. NON-WAIVER OF BREACH

The acceptance of late performance with or without objection or reservation by a Party shall not waive any rights of the Party nor constitute a waiver of the requirement of timely performance of any obligations remaining to be performed.

L. SEVERABILITY

If any term or condition of the contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and conditions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the provision held to be invalid or illegal.

M. INDEMNIFICATION

1. GENERAL

The Vendor agrees to defend, indemnify, and hold harmless the State and its employees, volunteers, agents, and its elected and appointed officials (“the indemnified parties”) from and against any and all third party claims, liens, demands, damages, liability, actions, causes of action, losses, judgments, costs, and expenses of every nature, including investigation costs and expenses, settlement costs, and reasonable attorney fees and expenses (“the claims”), sustained or asserted against the State for personal injury, death, or property loss or damage, arising out of, resulting from, or attributable to the willful misconduct, negligence, error, or omission of the Vendor, its employees, Subcontractors, consultants, representatives, and agents, resulting from this contract, except to the extent such Vendor liability is attenuated by any action of the State which directly and proximately contributed to the claims.

2. INTELLECTUAL PROPERTY

The Vendor agrees it will, at its sole cost and expense, defend, indemnify, and hold harmless the indemnified parties from and against any and all claims, to the extent such claims arise out of, result from, or are attributable to, the actual or alleged infringement or misappropriation of any patent, copyright, trade secret, trademark, or confidential information of any third party by the Vendor or its employees, Subcontractors, consultants, representatives, and agents; provided, however, the State gives the Vendor prompt notice in writing of the claim. The Vendor may not settle any infringement claim that will affect the State’s use of the Licensed Software without the State’s prior written consent, which consent may be withheld for any reason.

If a judgment or settlement is obtained or reasonably anticipated against the State’s use of any intellectual property for which the Vendor has indemnified the State, the Vendor shall, at the Vendor’s sole cost and expense, promptly modify the item or items which were determined to be infringing, acquire a license or licenses on the State’s behalf to provide the necessary rights to the State to eliminate the infringement, or provide the State with a non-infringing substitute that provides the State the same functionality. At the State’s election, the actual or anticipated judgment may be treated as a breach of warranty by the Vendor, and the State may receive the remedies provided under this Solicitation.

3. PERSONNEL

The Vendor shall, at its expense, indemnify and hold harmless the indemnified parties from and against any claim with respect to withholding taxes, worker’s compensation, employee benefits, or any other claim, demand, liability, damage, or loss of any nature relating to any of the personnel, including subcontractor’s and their employees, provided by the Vendor.

4. SELF-INSURANCE

The State of Nebraska is self-insured for any loss and purchases excess insurance coverage pursuant to Neb. Rev. Stat. § 81-8,239.01. If there is a presumed loss under the provisions of this agreement, Vendor may file a claim with the Office of Risk Management pursuant to Neb. Rev. Stat. §§ 81-8,239.01 to 81-8,306 for review by the State Claims Board. The State retains all rights and immunities under the State Miscellaneous (Neb. Rev. Stat. § 81-8,294), Tort (Neb. Rev. Stat. § 81-8,209), and Contract Claim Acts (Neb. Rev. Stat. § 81-8,302), as outlined in state law and accepts liability under this agreement only to the extent provided by law.

5. The Parties acknowledge that Attorney General for the State of Nebraska is required by statute to represent the legal interests of the State, and that any provision of this indemnity clause is subject to the statutory authority of the Attorney General.

N. ATTORNEY'S FEES

In the event of any litigation, appeal, or other legal action to enforce any provision of the contract, the Parties agree to pay all expenses of such action, as permitted by law and if ordered by the court, including attorney's fees and costs, if the other Party prevails.

Should Contractor be the prevailing party in such action, the State agrees to pay all expenses of such action, as permitted by law, including attorney’s fees and costs.

O. ASSIGNMENT, SALE, OR MERGER

Either Party may assign the contract upon mutual written agreement of the other Party. Such agreement shall not be unreasonably withheld.

The Vendor retains the right to enter into a sale, merger, acquisition, internal reorganization, or similar transaction involving Vendor’s business. Vendor agrees to cooperate with the State in executing amendments to the contract to allow for the transaction. If a third party or entity is involved in the transaction, the Vendor will remain responsible for performance of the contract until such time as the person or entity involved in the transaction agrees in writing to be contractually bound by this contract and perform all obligations of the contract.

P. CONTRACTING WITH OTHER NEBRASKA POLITICAL SUBDIVISIONS OF THE STATE OR ANOTHER STATE The Vendor may, but shall not be required to, allow agencies, as defined in Neb. Rev. Stat. § 81-145(2), to use this contract. The terms and conditions, including price, of the contract may not be amended. The State shall not be contractually obligated or liable for any contract entered into pursuant to this clause. A listing of Nebraska political subdivisions may be found at the website of the Nebraska Auditor of Public Accounts.

The Vendor may, but shall not be required to, allow other states, agencies or divisions of other states, or political subdivisions of other states to use this contract. The terms and conditions, including price, of this contract shall apply to any such contract, but may be amended upon mutual consent of the Parties. The State of Nebraska shall not be contractually or otherwise obligated or liable under any contract entered into pursuant to this clause. The State shall be notified if a contract is executed based upon this contract.

Q. FORCE MAJEURE

Neither Party shall be liable for any costs or damages, or for default resulting from its inability to perform any of its obligations under the contract due to a natural or manmade event outside the control and not the fault of the affected Party (“Force Majeure Event”) that was not foreseeable at the time the Contract was executed. The Party so affected shall immediately make a written request for relief to the other Party and shall have the burden of proof to justify the request. The other Party may grant the relief requested; relief may not be unreasonably withheld. Labor disputes with the impacted Party’s own employees will not be considered a Force Majeure Event.

R. CONFIDENTIALITY

All materials and information provided by the Parties or acquired by a Party on behalf of the other Party shall be regarded as confidential information. All materials and information provided or acquired shall be handled in accordance with federal and state law, and ethical standards. Should said confidentiality be breached by a Party, the Party shall notify the other Party immediately as soon as practical of said breach and take immediate corrective action.

It is incumbent upon the Parties to inform their officers and employees of the penalties for improper disclosure imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5 U.S.C. 552a (i)(1), which is made applicable by 5 U.S.C. 552a (m)(1), provides that any officer or employee, who by virtue of his/her employment or official position has possession of or access to agency records which contain individually identifiable information, the disclosure of which is prohibited by the Privacy Act or regulations established thereunder, and who knowing that disclosure of the specific material is prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

S. EARLY TERMINATION

The contract may be terminated as follows:

1. The State and the Vendor, by mutual written agreement, may terminate the contract, in whole or in part, at any time.

2. The State, in its sole discretion, may terminate the contract, in whole or in part, for any reason upon thirty

(30) calendar day’s written notice shall be delivered by email, delivery receipt requested; certified mail, return receipt requested; or in person with proof of delivery to the Vendor. Such termination shall not relieve the Vendor of warranty or other service obligations incurred under the terms of the contract. In the event of termination, the Vendor shall be entitled to payment, determined on a pro rata basis, for products or services satisfactorily performed or provided.

3. The State may terminate the contract, in whole or in part, immediately for the following reasons:

a. if directed to do so by statute,

b. Vendor has made an assignment for the benefit of creditors, has admitted in writing its inability to pay debts as they mature, or has ceased operating in the normal course of business,

c. a trustee or receiver of the Vendor or of any substantial part of the Vendor’s assets has been appointed by a court,

d. fraud, misappropriation, embezzlement, malfeasance, misfeasance, or illegal conduct pertaining to performance under the contract by its Vendor, its employees, officers, directors, or shareholders,

e. an involuntary proceeding has been commenced by any Party against the Vendor under any one of the chapters of Title 11 of the United States Code and (i) the proceeding has been pending for at least sixty (60) calendar days; or (ii) the Vendor has consented, either expressly or by operation of law, to the entry of an order for relief; or (iii) the Vendor has been decreed or adjudged a debtor,

f. a voluntary petition has been filed by the Vendor under any of the chapters of Title 11 of the United States Code,

g. Vendor intentionally discloses confidential information,

h. Vendor has or announces it will discontinue support of the deliverable; and,

i. In the event funding is no longer available.

4. Contractor may terminate this contract upon no less than thirty (30) days’ written notice in the event of either (1) the State’s failure to pay any undisputed invoices in a timely manner or (2) the State’s directing or requiring the Contractor to act in a manner that would violate applicable law or regulation

T. CONTRACT CLOSEOUT

Upon termination of the contract for any reason the Vendor shall within thirty (30) days, unless stated otherwise herein:

1. Transfer all completed or partially completed deliverables to the State,

2. Transfer ownership and title to all completed or partially completed deliverables to the State,

3. Return to the State all information and data unless the Vendor is permitted to keep the information or data by contract or rule of law. Vendor may retain one copy of any information or data as required to comply with applicable work product documentation standards or as are automatically retained in the course of Vendor’s routine back up procedures,

4. Cooperate with any successor Contactor, person, or entity in the assumption of any or all of the obligations of this contract,

5. Cooperate with any successor Contactor, person, or entity with the transfer of information or data related to this contract,

6. Return or vacate any state owned real or personal property; and,

7. Return all data in a mutually acceptable format and manner.

Nothing in this section should be construed to require the Vendor to surrender intellectual property, real or personal property, or information or data owned by the Vendor for which the State has no legal claim.

U. AMERICANS WITH DISABILITIES ACT

Vendor shall comply with all applicable provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131– 12134), as amended by the ADA Amendments Act of 2008 (ADA Amendments Act) (Pub.L. 110–325, 122 Stat. 3553 (2008)), which prohibits discrimination on the basis of disability by public entities.

Attachment D

STATE OF NEBRASKA

BUSINESS ASSOCIATE AGREEMENT

THIS BUSINESS ASSOCIATE AGREEMENT (“Agreement”) amends and is made a part of all Services Agreements (as defined below) between ________________________(“Business Associate”) and State of Nebraska (“Company”) on behalf of the Group Health Plans sponsored by Company (the “Plan”). This Agreement is effective _______________ or upon the effective date of the underlying Services Agreement, whichever is later (“Effective Date”). This Agreement supersedes and replaces any prior Business Associate Agreements between the parties.

1. Definitions.

a. Catch-all definitions. The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Covered Entity, Data Aggregation, Designated Record Set, Disclose or Disclosure, Electronic Protected Health Information, Health Care Operations, Minimum Necessary, Notice of Privacy Practices, Protected Health Information or PHI, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

Other capitalized terms used but not otherwise defined in this Agreement shall have the meaning ascribed in the HIPAA Rules.

b. Specific definitions.

(1) “Business Associate” shall generally have the same meaning as the term "Business Associate" at 45 CFR 160.103, and in reference to the party to this Agreement, shall mean the party identified above as Business Associate.

(2) “Business Associate Functions” means functions performed by Business Associate on behalf of the Plan in the course of providing or arranging for plan administration services which involve the creation, receipt, maintenance or transmission of PHI by Business Associate or its agents or Subcontractors. It is anticipated that the services provided by Business Associate will be performed as part of the Plan's “health care operations” as defined in the HIPAA Rules.

(3) “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended at the time the section is to be applied.

(4) “Individual” shall generally have the same meaning ascribed in the HIPAA Rules and shall refer only to Individuals who are covered persons under the Plan.

(5) “Services Agreements” means all agreements whether now in effect or hereafter entered into, between Company and Business Associate for the performance of Business Associate Functions by Business Associate on behalf of the Plan.

2. Purpose. The Plan is a Covered Entity under HIPAA. The HIPAA Rules require the Plan to obtain, and Business Associate to provide, satisfactory written contractual assurances before Business Associate may create, receive, maintain, or Disclose PHI to perform Business Associate Functions on behalf of the Plan. This Agreement is entered into to provide the contractual assurances required under the HIPAA Rules.

3. Obligations of Business Associate. As an express condition of performing Business Associate Functions, Business Associate agrees to:

a. Not Use or Disclose PHI other than as permitted or required by this Agreement or as otherwise Required by Law.

b. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to Electronic Protected Health Information, to prevent Use or Disclosure of PHI other than as provided for in this Agreement.

c. Report to the Plan's designated privacy official, without unreasonable delay but in no event more than three (3) business days after discovery by Business Associate, any Use or Disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware, including any Breach of Unsecured Protected Health Information as required at 45 CFR 164.410, and any Security Incident of which it becomes aware, together with any remedial or mitigating action taken or proposed to be taken with respect thereto. If Business Associate does not have available complete information in satisfaction of 45 CFR 164.410(c) within three (3) business days of discovery of the impermissible Use or Disclosure, Business Associate shall provide all information it has at such time, and immediately update the Plan with additional information as it becomes available through prompt investigation. In the event of Breach of Unsecured Protected Health Information, such report shall be made without unreasonable delay but in no event more than thirty (30) calendar days after discovery by Business Associate, This Agreement serves as Business Associate's notice to the Plan that attempted but unsuccessful Security Incidents regularly occur and that no further notice will be made by Business Associate unless there has been a successful Security Incident or attempts or patterns of attempts that Business Associate determines to be suspicious.

Business Associate shall cooperate with the Plan in mitigating any harmful effects of any impermissible Use or Disclosure. In the case of a Breach as determined to exist in the sole discretion of the Plan which was due to a violation of this Agreement by Business Associate, Business Associate shall pay for the reasonable and actual costs of investigation, agreed upon mitigation and notification to affected Individuals.

As an alternative to Business Associate reimbursing Company and the Plan for the costs of notification, the Plan may elect to have Business Associate directly provide the notifications to Individuals for breaches caused by Business Associate, provided that Company and the Plan shall have final approval of all content of notifications to Individuals.

d. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree in writing to the same or more stringent restrictions, conditions, and requirements that apply to Business Associate with respect to such information.

e. Within ten (10) business days of request by an Individual or notification by the Plan, make available to the Individual such Individual's PHI maintained by Business Associate in a Designated Record Set in accordance with 45 CFR 164.524. The parties agree that Individuals will be directed to Business Associate to make all requests for access to PHI. Business Associate will provide such access according to its own procedures for such access in accordance with the requirements of 45 CFR 164.524. If the requested PHI is maintained in one or more Designated Record Sets electronically and if the Individual requests an electronic copy of such PHI, Business Associate must provide the Individual with access to PHI in the electronic form and format requested by the Individual, if it is readily producible in such form and format; or, if not, in a readable electronic form and format as agreed to between Business Associate and the Individual. Business Associate shall provide the requested information directly to the Individual, along with a notice to the Individual that a copy of the individual's request has been furnished to the Plan and that the Plan may provide additional information to the Individual in response to the request.

If the Individual's request covers records not maintained by Business Associate, Business Associate shall notify the Plan within three (3) days as soon as possible upon receipt of the request. The Plan will be responsible for providing access or otherwise responding directly to the Individual pursuant to the HIPAA Rules with respect to PHI not in the possession of Business Associate or an agent or subcontractor of Business Associate. Business Associate may charge the Individual reasonable fees related to this access, as determined by Business Associate, but only in such amounts as permitted by the HIPAA Rules. The Plan authorizes Business Associate to require payment of such fees from the Individual prior to releasing any records.

f. Business Associate agrees to receive requests for amendment and amend PHI as required by 45 CFR 164.526 on the Plan's behalf for as long as such information is maintained by Business Associate. The parties agree that Individuals will be directed to Business Associate to make all such requests for amendment of PHI. Business Associate will amend such PHI according to its own procedures for such amendment in accordance with the requirements of 45 CFR 164.526. If the Individual's request covers records not maintained by Business Associate, Business Associate shall notify the Plan within three (3) days as soon as possible upon receipt of such request. The Plan will be responsible for amending or otherwise responding directly to the Individual pursuant to the HIPAA Rules with respect to PHI not in the possession of Business Associate or an agent or contractor of Business Associate.

Business Associate shall notify the Plan of any amendments made to PHI.

g. Business Associate agrees to process all requests for disclosure accounting by Individuals for as long as such information is maintained by Business Associate.

Individuals will be directed to Business Associate to make all such requests.

Business Associate will provide the accounting that is required under 45 CFR

164.528 on the Plan's behalf directly to the Individual. Business Associate will provide such accounting according to its own procedures for such accounting in accordance with the requirements of 45 CFR 164.528.

Business Associate shall notify the Plan within three (3) days as soon as possible of any request made by an Individual for a disclosure accounting. The Plan will be responsible for responding directly to the Individual (or the Individual's personal representative) pursuant to 45 CFR 164.528 with respect to disclosures of PHI by persons or entities other than Business Associate or a subcontractor or agent of Business Associate. Business Associate shall provide directly to the Individual the requested accounting of disclosures made by Business Associate or a subcontractor or agent of Business Associate, along with a notice to the Individual that a copy of the Individual's request has been furnished to the Plan and that the Plan may provide additional information to the Individual in response to the request.

h. Subject to applicable legal privileges or other legally binding confidentiality obligations, make its internal practices, books and records relating to this Agreement available to the Secretary of HHS , in the time and manner designated by the Secretary and to the Plan upon reasonable notice and during normal business hours for purposes of determining the Plan's and Business Associate's compliance with the HIPAA Rules.

i. So that the Plan may meet its obligations to evaluate requests for restrictions and confidential communications in connection with the disclosure of PHI under 45 CFR 164.522, Business Associate and the Plan agree that, to the extent that communications are within the control of Business Associate, Business Associate will perform these evaluations on behalf of the Plan. Business Associate will evaluate such requests according to its own procedures for such requests, in accordance with the requirements of 45 CFR 164.522, and shall implement such appropriate operational steps as are required by its own procedures. Such evaluation will not relieve the Plan of any additional and independent obligations to evaluate restrictions or implement confidential communications where requested by an Individual. Accordingly, Business Associate will evaluate requests for restrictions and requests for confidential communications, and will respond to these requests as appropriate under Business Associate's procedures. The Plan agrees that it will not agree to such restriction or request that would affect Business Associate without the approval of Business Associate, so that Business Associate can determine whether it can reasonably administer the request.

j. So that the Plan may meet its obligation to evaluate complaints from Individuals regarding their privacy rights or privacy practices of the Plan or Business Associate, the parties agree that Individuals shall be directed to submit any such complaint to Business Associate for review and evaluation.