4-PROFESSIONAL SERVICES AGREEMENT.pdf

PROFESSIONAL SERVICES AGREEMENT

FOR

<INSERT BRIEF DESCRIPTION OF SERVICES>

BETWEEN

INLAND EMPIRE HEALTH PLAN

AND

<INSERT CONTRACTOR’S NAME>

IEHP Board Approval 09-12-16 (MO: 16-131)

Master PSA v.9 (IEHP Legal 01-2020)

PROFESSIONAL SERVICES AGREEMENT

INLAND EMPIRE HEALTH PLAN

This Professional Services Agreement (“Agreement”) is made and entered into by and between Inland Empire Health Plan (“IEHP”), a local public entity of the State of California, and <insert Contractor’s Name> (“CONTRACTOR”), with reference to the following facts:

RECITALS

WHEREAS, IEHP is in need of the professional services offered by CONTRACTOR; and

WHEREAS, CONTRACTOR has offered evidence of having the relevant specialized training and/or experience and/or knowledge and is interested in providing the scope of work as set forth herein, including any attachments hereto; and, WHEREAS, this Agreement may be presented to the Governing Board of IEHP for approval and is effective only upon the authorization of the Governing Board of IEHP;

NOW THEREFORE in consideration of the mutual promises, covenants and conditions hereinafter contained, and in the following exhibits or attachments attached hereto and incorporated herein by this reference:

ATTACHMENT A – SCOPE OF SERVICES

ATTACHMENT B – SCHEDULE OF FEES

ATTACHMENT C – OWNERSHIP INFORMATION

[ATTACHMENT D – BUSINESS ASSOCIATE AGREEMENT]

[ATTACHMENT E – PLAN LICENSING/STATE REQUIREMENTS]

[ATTACHMENT F – MEDICARE ADDENDUM]

The Parties hereto mutually agree as follows:

1. SERVICES

A. Subject to the terms and conditions of this Agreement, CONTRACTOR shall provide the services necessary to perform in a complete, skillful and professional manner all those services described in Attachment A. CONTRACTOR agrees to maintain any applicable professional license(s) as required by law at all times while performing services under this Agreement.

B. Other than as specifically indicated in Attachment A, CONTRACTOR will not utilize the services of any subcontractors in providing the services required hereunder without IEHP’s prior written approval. CONTRACTOR shall request approval by submitting a written description of the services to be subcontracted. If approved by IEHP, CONTRACTOR shall remain the prime contractor for the services and be responsible for the conduct and performance of each approved subcontractor. All references to CONTRACTOR in this Agreement in the context of providing services, where applicable, will also include CONTRACTOR’s approved subcontractors.

C. CONTRACTOR, or its agents or subcontractors, shall not perform any services outside the United States of America without IEHP’s prior written consent. In the event CONTRACTOR is in breach of this Section, IEHP shall have, in its sole discretion, the right to immediately terminate this Agreement.

2. COMPENSATION

A. IEHP shall compensate CONTRACTOR for the services set forth in Attachment A, upon approval of a properly presented invoice for services. Payment shall be made “net-30” terms from the date of receipt of a complete invoice.

B. IEHP shall make payments to CONTRACTOR as outlined in Attachment B.

CONTRACTOR shall submit invoices to IEHP for authorized services within thirty

(30) days of the month of the rendered service. Invoices from CONTRACTOR must be received by IEHP no later than ninety (90) days from the month wherein the services were rendered; invoices submitted after ninety (90) days from the month of services are not eligible for reimbursement.

C. Other than as stated on Attachment B, price increases will not be permitted during the Agreement term. If applicable, annual increases shall not exceed the Consumer Price Index- All Consumers, All Items – Riverside, San Bernardino and Ontario areas and be subject to satisfactory performance review by IEHP and approved (if needed) for budget funding by the Governing Board.

D. The total compensation payable under this Agreement shall not exceed <insert written amount> <insert $ dollar amount>. In no event shall compensation exceed this amount without a written amendment to this Agreement authorizing such increase in total compensation payable to CONTRACTOR. CONTRACTOR agrees to monitor its costs at all times and provide IEHP forty-five (45) days’ written notice if CONTRACTOR becomes aware that it may exceed the total compensation authorized pursuant to this Section.

E. It is expressly agreed between the parties that payment to CONTRACTOR does not constitute or imply acceptance by IEHP of any portion of the CONTRACTOR’s work.

F. It is mutually agreed and understood that the obligations of IEHP are contingent upon the availability of state and federal funds. In the event that such funds are not forthcoming for any reason, this Agreement is rendered null and void, and IEHP shall immediately notify CONTRACTOR in writing. This Agreement shall be deemed terminated and of no further force and effect immediately on IEHP’s notification to CONTRACTOR. In the event of such termination, CONTRACTOR shall be entitled to reimbursement of costs for services rendered in accordance with this agreement.

3. DISALLOWANCE

In the event CONTRACTOR receives payment for services under this Agreement which are later disallowed for nonconformance with the terms and conditions herein, CONTRACTOR shall refund the disallowed amount to IEHP within thirty (30) days of IEHP’s written request. IEHP retains the option to offset the amount disallowed from any payment due to CONTRACTOR under this Agreement, or under any other contract or agreement between CONTRACTOR and IEHP.

4. TERM AND TERMINATION

A. Term of Agreement. This Agreement shall be effective as of <insert start date of services> (“Effective Date”) and shall continue in effect through <insert term date or end date of services> (“Initial Term”) unless earlier terminated in accordance with the provisions of <insert Termination Section> this Agreement. At the end of the Initial Term, upon thirty (30) days written notice, IEHP shall have the option to extend this Agreement for up to <insert number of terms remaining, not to exceed five (5) years total (i.e. “four (4) consecutive one (1) year terms”)> (“Extended Term(s)”). This Agreement shall immediately lapse unless IEHP exercises its option to extend the term at the end of the Initial Term or any Extended Term.

B. Termination.

1) Termination for Convenience. IEHP may terminate this Agreement, for convenience, upon sixty (60) days’ written notice in accordance with Section 18 (NOTICES).

2) Termination for Cause. Should IEHP determine that there is a basis for termination for cause, such termination shall be effected upon five (5) days’ written notice to CONTRACTOR in accordance with Section 18

(NOTICES).

3) Immediate Termination. Immediate termination shall be available to the non-defaulting party, as specified below, by providing written notice in accordance with Section 18 (NOTICES).

i. IEHP may immediately terminate this Agreement upon IEHP’s determination that CONTRACTOR has engaged in a fraudulent activity against IEHP or its health plan members.

ii. If CONTRACTOR is excluded, terminated, or suspended from participation in any state or federal health care program, including, without limitation, appearing on the federal List of Excluded Individuals/Entities (LEIE), the Medi-Cal Suspended and Ineligible Provider List (SIPL), or the System for Award Management (SAM). CONTRACTOR understands that IEHP is prohibited from paying CONTRACTOR for any services rendered on or after the date of exclusion.

iii. Pursuant to any provision of this Agreement which expressly authorizes immediate termination.

4) Effect of Termination.

i. If, for any reason, this Agreement is terminated prior to full completion of services, CONTRACTOR agrees to immediately furnish to IEHP all documents related to services rendered under this Agreement, including without limitation, copies of work papers, schedules or other work products related to this Agreement.

ii. Unless otherwise provided herein, the rights and obligations of any party which by their nature extend beyond the expiration or termination of this Agreement, shall continue in full force and effect, notwithstanding the expiration or termination of this Agreement. This includes, without limitation, the following provisions: DISALLOWANCE, INDEMNIFICATION, LIMITATION OF LIABILITY, WORK PRODUCT AND

INTELLECTUAL PROPERTY, CONFIDENTIALITY, and

GOVERNING LAW; VENUE.

5. INDEMNIFICATION

A. CONTRACTOR shall indemnify, and hold harmless IEHP, its Governing Board, directors, officers, employees, agents and representatives (individually and collectively hereinafter referred to as “Indemnitees”) from liability, loss, settlement, claim, demand, and expense of any kind, arising out of the performance of services or the omission of any required act under the Agreement (and as noted in Attachment A), of the CONTRACTOR, its officers, employees, subcontractors, agents or representatives. CONTRACTOR shall defend the Indemnitees in any claim or action based upon any such alleged acts or omissions, at its sole expense, which shall include all costs and fees, including, but not limited to, attorney fees, cost of investigation, defense, and settlement or awards.

It is not the intent of the parties that the provisions of this Section and the provisions of the Indemnification provision in Attachment D shall be in conflict. In the event of any conflict, the Indemnification provisions in Attachment D shall be interpreted to relate only to matters within the scope of the HIPAA Business Associates Agreement.

B. With respect to any action or claim subject to indemnification herein by

CONTRACTOR, CONTRACTOR shall, at their sole cost, have the right to use counsel of their own choice and shall have the right to adjust, settle, or compromise any such action or claim without the prior consent of IEHP; provided, however, that any such adjustment, settlement or compromise in no manner whatsoever limits or circumscribes CONTRACTOR’s indemnification to Indemnitees as set forth herein.

C. CONTRACTOR’s obligation hereunder shall be satisfied when CONTRACTOR has provided to IEHP the appropriate form of dismissal relieving IEHP from any liability for the action or claim involved.

D. The specified insurance limits required in this Agreement shall in no way limit or circumscribe CONTRACTOR’s obligations to indemnify and hold harmless the Indemnitees herein from third party claims.

6. LIMITATION OF LIABILITY

Without affecting the indemnification obligations set forth in this Agreement, in no event shall either party be liable for consequential, indirect, or incidental damages, including, without limitation, lost profits, arising out of the services provided under this Agreement.

7. INSURANCE

Without limiting or diminishing CONTRACTOR’s obligation to indemnify or hold IEHP harmless, CONTRACTOR shall procure and maintain or cause to be maintained, at its sole cost and expense, the following insurance coverage during the term of this Agreement.

A. Workers’ Compensation - covering all of CONTRACTOR’s personnel performing services under this Agreement as prescribed by the laws of the jurisdiction where work is performed. Policy shall include Employers’ Liability including Occupational Disease with limits not less than $1,000,000 per person per accident.

B. Commercial General Liability - including but not limited to, premises liability, contractual liability, products and completed operations liability, personal and advertising injury, and cross liability coverage. Policy’s limit of liability shall not be less than $1,000,000 per occurrence combined single limit, with a general aggregate limit of no less than two (2) times the occurrence limit.

C. Vehicle Liability - all owned, non-owned, or hired vehicles so used in an amount not less than $1,000,000 per occurrence combined single limit, with a general aggregate limit of no less than two (2) times the occurrence limit.

D. Professional Liability - a limit of liability not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. CONTRACTOR shall ensure continuous coverage for such length of time as necessary to cover any and all claims (i.e.

appropriate Tail Coverage for coverage written on a claims made basis, etc.).

E. Cyber and Privacy Liability - covering claims involving privacy violations, information theft, damage to or destruction of electronic information, negligent, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network security. The below referenced coverage is required only if any products and/or services related to professional services or information technology (including hardware and/or software) are provided to IEHP under this Agreement for such length of time as necessary to cover any and all claims.

1) Privacy & Network Liability: $1,000,000

2) Internet Media Liability: $1,000,000

3) Business Interruption & Expense: $1,000,000

4) Data Extortion: $1,000,000

5) Regulatory proceeding: $1,000,000

6) Data Breach Notification & Credit Monitoring: $1,000,000

In the event of a breach, it is the CONTRACTOR’s obligation to notify IEHP’s Compliance department immediately, but no later than 24 hours via telephone to the Compliance Hotline (866) 355-9038 and via email to the Compliance Mailbox compliance@iehp.org.

F. General Insurance Provisions – All lines.

mailto:compliance@iehp.org

1) Insurance to be placed with insurers with a current A. M. BEST rating of not less than A: VIII (A:8) unless otherwise acceptable to IEHP.

2) CONTRACTOR must declare any deductibles or self-insured retentions

(“SIRs”) for insurance coverage required to be approved by IEHP. Should any deductibles or SIRs be unacceptable to IEHP, IEHP may require CONTRACTOR to: 1) reduce or eliminate such deductibles or SIRs; 2) provide proof of ability to pay such required fees/expenses within the retention or deductible; and 3) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses.

3) CONTRACTOR shall furnish IEHP with either 1) original Certificate(s) of

Insurance or amendatory endorsements effecting coverage as required herein, or 2) if requested by IEHP, provide original certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect. Further, CONTRACTOR shall provide no less than thirty (30) days’ written notice to IEHP prior to any material modification, cancellation, expiration or reduction in coverage of such insurance. In such event, this Agreement shall terminate forthwith, unless IEHP receives, prior to such effective date, another properly executed original Certificate of Insurance, including all endorsements, evidencing the coverage set forth herein are in full force and effect.

CONTRACTOR shall not commence operations until IEHP has been furnished original Certificate(s) of Insurance and endorsements.

4) CONTRACTOR’s insurance shall be construed as primary insurance, and

IEHP’s insurance shall not be construed as contributory. Additionally, the above-referenced policies shall be endorsed to waive subrogation in favor of IEHP and name IEHP as an Additional Insured, where applicable.

5) CONTRACTOR shall pass down the insurance obligations contained herein to all tiers of subcontractors working under this Agreement.

6) The insurance requirements contained in this Agreement may be met with a program(s) of self-insurance acceptable to IEHP.

7) CONTRACTOR agrees to notify IEHP of any claim by a third party or any incident or event that may give rise to a claim arising from the performance of this Agreement.

8. WORK PRODUCT AND INTELLECTUAL PROPERTY

A. CONTRACTOR work product, including without limitation, all reports, findings, data or documents compiled or assembled by CONTRACTOR under this Agreement on behalf of IEHP, becomes the property of IEHP and shall be transmitted to IEHP at the termination of this Agreement (the “Deliverables”).

B. To the extent that any CONTRACTOR Information (as defined below) is contained in any of the Deliverables, CONTRACTOR hereby grants to IEHP a paid-up, royalty-free, nonexclusive, perpetual license to use and reproduce such CONTRACTOR Information solely for IEHP’s internal business operations.

C. CONTRACTOR Information is defined as information created, acquired or otherwise to which CONTRACTOR has rights in (or may otherwise obtain rights in), including methods, methodologies, procedures, processes, know-how, and techniques (including, without limitation, function, process, system and data models); templates; and data, documentation, and proprietary information and processes.

9. OFFICERS, OWNERS, STOCKHOLDERS AND CREDITORS

On an annual basis, CONTRACTOR shall identify the names of the following persons and update such names by providing IEHP with thirty (30) days written notice of any changes in the information of such persons by listing them on Attachment C:

A. CONTRACTOR officers and owners who own greater than 5% of the

CONTRACTOR;

B. Stockholders owning greater than 5% of any stock issued by CONTRACTOR;

C. Major creditors holding more than 5% of any debts owed by CONTRACTOR;

10. NONDISCRIMINATION

This Agreement hereby incorporates by reference the provisions of Title 2, CCR, Sections 11105 et seq., as may be amended from time to time. CONTRACTOR agrees to comply with the provisions of Title 2, CCR, Sections11105 et seq., and further agrees to include this Nondiscrimination Clause in any and all subcontracts to perform services under this

11. CONFLICT OF INTEREST

CONTRACTOR shall have no interest, and shall not acquire any interest, direct or indirect, which will conflict in any manner or degree with the performance of services required under this Agreement.

12. PROTECTED HEALTH INFORMATION (“PHI”)

In the event that there is PHI shared between IEHP and CONTRACTOR pursuant this Agreement, IEHP and CONTRACTOR are subject to all relevant requirements contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), codified at Title 45, C.F.R., Parts 160 and 164, the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009 (HITECH), Public Law 111-5, enacted February 17, 2009, and the laws and regulations promulgated subsequent hereto and as amended, for purposes of services rendered pursuant to the Agreement. The Parties agree to cooperate in accordance with the terms and intent of this Agreement for implementation of relevant law(s) and/or regulation(s) promulgated under HIPAA and HITECH. The Parties further agree that it shall be in compliance with the requirements of HIPAA, HITECH, and the laws and regulations promulgated subsequent hereto and as amended. CONTRACTOR further agrees to the provisions of the HIPAA Business Associate Agreement, attached hereto in Attachment D, and incorporated herein by this reference.

13. CONFIDENTIALITY

A. Each Party receiving Confidential Information (a “Receiving Party”) hereunder, as defined below, shall hold the Confidential Information in strict confidence and use and access the Confidential Information only as is necessary for the performance of this Agreement. Each Receiving Party may only disclose Confidential Information to its employees and third party consultants who have a bona fide need to know and who have a written agreement restricting use and disclosure of Confidential Information to no less an extent as that required of the parties under this Agreement or as otherwise required by law. Receiving Party shall not otherwise disclose Confidential Information without the prior written consent of the other party (the “Disclosing Party”) or as otherwise required by law.

B. Confidential Information means any technical, financial, trade secrets, or any information the Disclosing Party has received from others, including personal information, which it is obligated to treat as confidential or proprietary, including without limitation, any and all ideas, techniques, processes, methods, systems, cost data, computer programs, formulas, work in progress, customers/members, business plans, and other business information. Confidential Information shall not include any information that:

1) Is or becomes available to the public (other than through any act or omission of Receiving Party);

2) Is required to be disclosed pursuant to an applicable law, subpoena, or court order, provided that the Receiving Party notifies the Disclosing Party to allow Disclosing Party to protect its interests, if desired;

3) Is independently developed by the Receiving Party without access to any

Confidential Information of the Disclosing Party;

4) Is lawfully known by the Receiving Party at the time of disclosure or otherwise lawfully obtained by a third party with no obligation of confidentiality.

14. PUBLIC ENTITY STATUS; BROWN ACT/PUBLIC RECORDS ACT

The parties hereby acknowledge and agree that IEHP is a local public entity of the State of California subject to the Brown Act, California Government Code Sections 54950 et seq., and the Public Records Act, California Government Code Sections 6250 et seq.

15. COMPLIANCE WITH LEGAL AND REGULATORY REQUIREMENTS

A. General. The parties shall observe and comply with all applicable county, state and federal laws, ordinances, rules and regulations now in effect, subsequently amended or hereafter enacted. The parties shall further observe and comply with all applicable executive orders, directives, requirements (including state and/or federal contract requirements), and standards by any organization having jurisdiction over IEHP to regulate the delivery of health care services. This shall include applicable accrediting organizations. All the aforementioned items are hereby made a part hereof and incorporated herein by reference.

B. Plan Licensing/State Requirements. CONTRACTOR understands that IEHP is a Medi-Cal Managed Care Health Plan and subject to the requirements under applicable laws (including but not limited to the Knox-Keene Health Care Service Plan Act and the Waxman-Duffy Prepaid Health Plan Act), contractual obligations set forth under the contract between IEHP and the California Department of Health Care Services (“DHCS”), and regulations promulgated by the California Department of Managed Health Care (“DMHC”) and DHCS. CONTRACTOR understands that specified requirements of the DHCS and DMHC may apply to CONTRACTOR as a contractor of IEHP.

16. AUDIT RIGHTS

A. CONTRACTOR understands that IEHP is a health plan regulated by entities, including without limitation, DMHC, DHCS, and the Centers for Medicare and Medicaid Services. To the extent CONTRACTOR is identified as a subcontractor for which IEHP is required to do oversight due to its legal and/or contractual obligations to such regulatory agencies, the following provisions shall apply:

1) Maintenance of Records. CONTRACTOR will maintain complete and accurate books, records and documentation, including audited financial statements prepared in accordance with generally accepted accounting procedures and practices, to sufficiently and properly reflect the services provided and CONTRACTOR’s direct and indirect costs invoiced in the performance of the Agreement. The retention period for such books and records shall be for a period of ten (10) years or as otherwise stated in the Attachments to this Agreement.

2) Records Subject to Inspection. All books, records, documents, and other materials maintained by CONTRACTOR and relating to the Agreement will be subject, at reasonable times during regular business hours and upon thirty (30) days prior written notice, to examination, inspection, copying, or audit by authorized IEHP personnel. The parties agree that books, records, documents, and other evidence of accounting procedures and practices related to CONTRACTOR’s cost structure, including overhead, general and administrative expenses, and profit factors will be excluded from IEHP’s review. Notwithstanding the foregoing, to the extent CONTRACTOR does not maintain audited financial statements, IEHP shall maintain the right to conduct a financial audit to confirm CONTRACTOR’s financial viability in connection with demonstrating CONTRACTOR’s ability to continue providing services in accordance with the standards outlined under this

3) Subcontracts. CONTRACTOR will incorporate into any subcontracts the records retention and review requirements of this Section.

17. EXCLUSION/DEBARMENT LISTS

A. CONTRACTOR represents that it, and the employees and consultants engaged under this Agreement, are not excluded, debarred, or suspended individuals/entities under any exclusion or debarment list relating to state or federal health care programs, including the Federal List of Excluded Individuals/Entities, System for Award Management, and the Suspended and Ineligible Provider List.

CONTRACTOR warrants that such status shall be maintained throughout the term of this Agreement.

B. CONTRACTOR understands that appearing on any such list requires IEHP to terminate this Agreement immediately, and prohibits IEHP from paying CONTRACTOR for any services rendered on or after the date of exclusion. Should CONTRACTOR be in receipt of payment for services rendered after the exclusion date, CONTRACTOR agrees to submit a refund of such fees upon written notice by IEHP. IEHP expressly reserves its right to recoup payment of such fees under Section 3 (DISALLOWANCE).

18. NOTICES

Other than correspondences for which email communication is expressly reserved pursuant to the terms of this Agreement, all notices required or contemplated by this Agreement shall be delivered to the respective parties in the manner and at the addresses set forth below or to such other address(es) as the parties may hereafter designate, in writing. Such notices will be deemed given if sent by certified United States mail or commercial courier, at the time of receipt confirmed by corresponding documentation.

IEHP: CONTRACTOR:

Jarrod McNaughton, MBA, FACHE <insert Name> Chief Executive Officer <insert Title> IEHP <insert Name of Contractor> 10801 Sixth Street <insert Contractor’s Address> Rancho Cucamonga, CA 91730 <insert Contractor’s Address>

(909) 890-2000 <insert Contractor’s Phone> cc: Purchasing Department Purchasing@iehp.org

19. SEVERABILITY

In the event any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement will continue in full force and effect.

20. WAIVER

A waiver by a party of any breach of any one (1) or more of the terms of this Agreement shall not be construed to be a waiver of any subsequent or other breach of the same term or of any other term herein.

mailto:Purchasing@iehp.org

21. INDEPENDENT CONTRACTOR

It is understood and agreed that the relationship between the parties is an independent contractor relationship. Neither party, including its officers, agents, employees or subcontractors, shall be considered to be employees of the other, nor entitled to any benefits payable to such employees, including Workers’ Compensation Benefits. None of the provisions of this Agreement shall be construed to create a relationship of agency, representation, joint venture, ownership, control or employment between the parties other than that of independent parties contracting for the purposes of effectuating this Agreement.

22. GOVERNING LAW; VENUE

A. The provisions of this Agreement shall be construed in accordance with the laws of the State of California, excluding its conflicts of law provisions.

B. The provisions of the Government Claims Act (California Government Code

Sections 900 et seq.) must be followed for any disputes under this Agreement.

C. All actions and proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal (if permitted by law) courts located in the counties of San Bernardino or Riverside, State of California.

23. FORCE MAJEURE

Each party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond the reasonable control of such party, including, without limitation, acts of God, war, or action of a governmental entity; provided that the affected party provides the other party with prompt written notice thereof and uses all reasonable efforts to remove or avoid such causes.

24. ASSIGNMENT

A party may not sell, assign, transfer, or otherwise convey this Agreement without the prior express written consent of the other party. Any attempted assignment of this Agreement not in accordance with this Section shall be null and void.

25. CHANGE IN CONTROL

CONTRACTOR must obtain IEHP’s written consent prior to CONTRACTOR entering into (i) any transaction or series of related transactions (including, but not limited to, any reorganization, merger, or consolidation) that results in the transfer of 50% or more of the outstanding voting power; or (ii) sale of all or substantially all of the assets of the CONTRACTOR to another person or entity. In the event CONTRACTOR fails to obtain IEHP’s prior written consent, IEHP shall have the option to terminate this Agreement immediately.

26. ALTERATION AND/OR AMENDMENT

No alteration, amendment, or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto. Only the Governing Board of IEHP or designee may authorize any alteration or revision of this Agreement on behalf of IEHP. Notwithstanding the foregoing, amendments required due to legislative, regulatory or other legal authority do not require the prior approval of CONTRACTOR and shall be deemed effective immediately (or such other time frame as required by law or regulation) upon CONTRACTOR’s receipt of notice. Notice of amendments required by law, regulation or other legal authority may be given to CONTRACTOR via regular mail at the address provided in Section 18. NOTICES.

27. ENTIRE AGREEMENT

This Agreement, including all attachments, which are hereby incorporated in this Agreement, supersedes any and all other agreements, promises, negotiations or representations, either oral or written, between the parties with respect to the subject matter and period governed by this Agreement and no other agreement, statement or promise relating to this Agreement shall be binding or valid.

28. COUNTERPARTS; SIGNATURES

This Agreement may be executed in separate counterparts, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument. The parties’ faxed signatures, and/or signatures scanned into PDF format, shall be effective to bind them to this Agreement.

(SIGNATURE PAGE TO FOLLOW)

IN WITNESS WHEREOF, the parties hereto certify that the individuals signing below have authority to execute this Agreement on behalf of their respective organizations, and may legally bind them to the terms and conditions of this Agreement, and any attachments hereto. The parties have signed this Professional Services Agreement as set forth below.

<INSERT CONTRACTOR NAME>:

By: ________________________________

<insert Name> <insert Title>

Date: _______________________________

<insert Name> <insert Title>

INLAND EMPIRE HEALTH PLAN:

Jarrod McNaughton, MBA, FACHE Chief Executive Officer

Chair, IEHP Governing Board

Attest: ______________________________

Secretary, IEHP Governing Board

Approved as to Form:

By:

Anna W. Wang Director Legal Affairs

Inland Empire Health Plan

Date:

ATTACHMENT A

SCOPE OF SERVICES

<insert CONTRACTOR’S NAME>

ATTACHMENT B

SCHEDULE OF FEES

<insert CONTRACTOR’S NAME>

1. CONTRACTOR shall invoice IEHP electronically for <insert brief description of services> fees to IEHP’s Accounts Payable Office at apinvoices@iehp.org. Each invoice shall cite the CONTRACTOR’s name, address, and remit to address, description of the work performed, the time period covered by the invoice, and the amount of payment requested.

A. Invoices shall be paid electronically by IEHP to the banking institution/account numbers provided by the CONTRACTOR. In the event of a change in banking institution and/or account numbers, CONTRACTOR shall provide IEHP thirty

(30) days prior written notice. IEHP will assume no liability for payments made to banking institutions and/or accounts that are due to CONTRACTOR’S failure to provide the correct information.

2. CONTRACTOR requests for payments and reimbursements must comply with the requirements set forth in Attachment A.

3. Requests for services shall be on an as needed basis. CONTRACTOR’s hourly rates are as follows.

Program Description Details For the

Engagement

TOTAL PROJECT COSTS $

4. CONTRACTOR TRAVEL REIMBURSEMENTS

To receive reimbursement, CONTRACTOR must provide a detailed breakdown of authorized expenses, identifying what was expended and when. Receipts or reasonable evidence are required for commercial travel, car rental, parking, and lodging. When CONTRACTOR employees visit more than one client on the same trip, the expenses incurred shall be apportioned in relation to time spent with each client.

CONTRACTOR shall obtain IEHP prior written approval, before incurring any expenses.

mailto:apinvoices@iehp.org

A. AIR TRAVEL

Air travel should be in coach class only, unless the CONTRACTOR bears the cost of the difference between coach and first class. Travel should be planned as far in advance as possible to take advantage of discounted fares; especially, if reasonable certainty exists that the event will take place. IEHP will only reimburse travel expenses for the CONTRACTOR or employee that provides onsite services at the IEHP facility.

B. RENTAL CARS

The rental car should be no larger than a mid-size rental, unless the amount of CONTRACTOR’s traveling dictates a larger vehicle.

C. LODGING

Lodging accommodations should be reasonable but not extravagant accommodations for CONTRACTOR and its employees. The CONTRACTOR should make use of economic rates whenever possible; otherwise, corporate rates or other discounts should be obtained.

D. NON-REIMBURSEMENT EXPENSES

Examples of expenses that will not be reimbursed by IEHP include the following:

1) Alcoholic beverages, entertainment;

2) Laundry, dry cleaning and pressing;

3) Travel insurance;

4) Parking fines;

5) Charges incurred because of indirect travel for personal reasons;

6) Gratuities and tips paid to porters, waiters, bellboys, and hotel maids inside the lodging facility (per diem reimbursement);

7) Any charges, fees, or other associated costs related to the making of reservations or other accommodations for travel.

5. ITEMIZED RECEIPTS

A valid photocopy of receipts is required for all travel expenditures regardless of cost.

A photocopy of receipts submitted with the invoice must indicate the name of the payee, date paid, amount, and the service rendered. Receipts shall be provided in sequential order.

ATTACHMENT C

OWNERSHIP INFORMATION

Contractor’s Name: ___________________________________________________________

Tax Identification Number (TIN): _______________________________________________

Address: ____________________________________________________________________

City: _____________________________________________ State: _____ Zip: ___________

Phone: ___________________________

President: ___________________________ Contact Person: _________________________

Person Signing Contract: ______________________________________________________

Broker Representative: ________________________________________________________

Please circle below how your organization is legally organized:

• Sole Proprietorship

• Partnership (LLC, etc.)

• Corporation o Privately Held Company* o Publicly Traded Company o Non-Profit Entity

• Government Agency

• Other (please indicate): __________________________________________________

*If Privately Held Company, please indicate the below information of the owners, officers, stockholders, and creditors if such interest is over 5%.

Name Ownership/Creditorship % (If greater than 5% interest)

Authorized Signature Date

ATTACHMENT D

HIPAA BUSINESS ASSOCIATE AGREEMENT

<Insert CONTRACTOR’S NAME>

This HIPAA Business Associate Agreement (the “Agreement”) is an Attachment to the Professional Services Agreement (the “Underlying Agreement”) between the Inland Empire Health Plan (“IEHP”) and <insert Contractor’s Name> (“Business Associate”) as of the “Effective Date”, of the Underlying Agreement.

RECITALS

WHEREAS, IEHP and Business Associate entered into the Underlying Agreement pursuant to which Business Associate provides services to IEHP, and in conjunction with the provision of such services, certain Protected Health Information (“PHI”) and/or certain electronic Protected Health Information (“ePHI”) may be made available to Business Associate for the purposes of carrying out its obligations under the Underlying Agreement; and, WHEREAS, the provisions of the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA”), more specifically the regulations found in Title 45, C.F.R., Parts 160 and 164, Subparts A and E (the “Privacy Rule”) and/or 45 C.F.R. Part 164, Subpart C (the “Security Rule”), as may be amended from time to time, which are applicable to the protection of any disclosure or use of PHI and/or ePHI pursuant to the Underlying Agreement; and, WHEREAS, the provisions of Subtitle D entitled “Privacy” of the Health Information Technology for Economic and Clinical Health Act (“HITECH”) of the American Recovery and Reinvestment Act of 2009, Public Law 111-5, and the implementing regulations adopted thereunder, as may be amended from time to time, impose certain requirements on business associates; and

WHEREAS, IEHP is a Covered Entity, as defined in the Privacy Rule; and, WHEREAS, Business Associate, when on behalf of IEHP, creates, receives, maintains or transmits PHI and/or ePHI, is a business associate as defined in the Privacy Rule; and, WHEREAS, the parties intend to enter into this Agreement to address the requirements of

HIPAA, HITECH, Privacy Rule, and Security Rule as they apply to Business Associate as a business associate of IEHP, including the establishment of permitted and required uses and disclosures (and appropriate limitations and conditions on such uses and disclosures) of PHI and/or ePHI by Business Associate that is created or received in the course of performing services on behalf of IEHP, and to incorporate the business associate obligations set forth in HITECH; and, WHEREAS, the parties agree that any disclosure or use of PHI and/or ePHI be in compliance with the Privacy Rule, Security Rule, HITECH, or other applicable law;

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

1. DEFINITIONS

A. Unless otherwise provided in this Agreement, or specifically defined in Paragraph B of this Section 1, the capitalized terms shall have the same meanings as set forth in the Privacy Rule, Security Rule, and/or HITECH, as may be amended from time to time.

B. Specific Definitions:

1) “Breach,” when used in connection with Unsecured PHI, means, as defined in 45 C.F.R. § 164.402, the acquisition, access, use or disclosure of PHI in a manner not permitted under the Privacy Rule (45 C.F.R. Part 164, Subpart E), which compromises the security or privacy of the PHI. Except as otherwise excluded under 45 C.F.R. § 164.402, such acquisition, access, use or disclosure is presumed to be a Breach unless the Covered Entity or Business Associate, as applicable, demonstrates that there is a low probability that the PHI has been compromised based on a risk assessment of at least the following factors:

i. The nature and extent of the PHI involved, including the types of identifiers and the likelihood of re-identification;

ii. The unauthorized person who used the PHI or to whom the disclosure was made;

iii. Whether the PHI was actually acquired or viewed; and

iv. The extent to which the risk to PHI has been mitigated.

2) “Discovered” means the first day on which such Breach is known to such

Covered Entity or Business Associate, respectively, (including any person, other than the individual committing the Breach, that is an employee, officer or other agent of such entity or associate, respectively) or should reasonably have been known to such Covered Entity or Business Associate (or person) to have occurred.

3) “Electronic Protected Health Information” (“ePHI”) means, as defined in

45 C.F.R. § 160.103, PHI transmitted by or maintained in electronic media, and for purposes of this Agreement, is limited to the ePHI that Business Associate creates, receives, maintains or transmits on behalf of IEHP.

4) “Protected Health Information” (“PHI”) shall generally have the meaning given such term in 45 C.F.R. § 160.103, which includes ePHI, and for purposes of this Agreement, is limited to PHI, including ePHI, that Business Associate creates, receives, maintains or transmits on behalf of IEHP.

5) “Secretary” means the Secretary of the U.S. Department of Health and

Human Services or his/her designee.

6) “Subcontractor” means a person to whom a business associate delegates a function, activity, or service other than in the capacity of a member of the workforce of such business associate.

7) “Unsecured PHI” means PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified by the Secretary in the guidance issued under 42 U.S.C. § 17932(h)(2).

2. SCOPE OF USE AND DISCLOSURE BY BUSINESS ASSOCIATE OF PHI AND/OR

EPHI

A. Business Associate shall be permitted to use PHI and/or ePHI disclosed to it by

IEHP:

1) On behalf of IEHP, or to provide services to IEHP for the purposes contained herein, if such use or disclosure would not violate the Privacy Rule, Security Rule, and/or HITECH.

2) As necessary to perform any and all of its obligations under the Underlying

B. Unless otherwise limited herein, in addition to any other uses and/or disclosures permitted or required by this Agreement or required by law, Business Associate may:

1) Use the PHI and/or ePHI in its possession for its proper management and administration and to fulfill any legal obligations.

2) Disclose the PHI and/or ePHI in its possession to a third party for the purpose of Business Associate’s proper management and administration or to fulfill any legal responsibilities of Business Associate, only if:

i. The disclosure is required by law; or

ii. Business Associate obtains written assurances from any person or organization to which Business Associate will disclose such PHI and/or ePHI that the person or organization will:

a) Hold such PHI and/or ePHI in confidence and use or further disclose it only for the purpose of which Business Associate disclosed it to the third party, or as required by law; and

b) Notify Business Associate of any instances of which it becomes aware in which the confidentiality of the information has been breached.

3) Use the PHI and/or ePHI to provide Data Aggregation services relating to the Health Care Operations of IEHP if authorized by the Underlying Agreement or pursuant to the written request of IEHP.

4) De-identify any and all PHI and/or ePHI of IEHP received by Business

Associate under this Agreement provided that the De-identification conforms to the requirements of the Privacy Rule and/or Security Rule and does not preclude timely payment and/or claims processing and receipt.

C. Business Associate shall not:

1) Use or disclose PHI and/or ePHI it receives from IEHP, nor from another business associate of IEHP, except as permitted or required by this Agreement, or as required by law.

2) Perform any services (including any and all subcontracted services), which involves creating, receiving, maintaining or transmitting PHI and/or ePHI outside the United States of America.

3) Disclose PHI and/or ePHI not authorized by the Underlying Agreement or this Agreement without patient authorization or De-identification of the PHI and/or ePHI as authorized in writing by IEHP.

4) Make any disclosure of PHI and/or ePHI that IEHP would be prohibited from making.

5) Use or disclose PHI for fundraising or marketing purposes.

6) Disclose PHI, except as otherwise required by law, to a health plan for payment or healthcare operations purposes if the individual has requested this restriction, and the PHI solely relates to a health care item or service that is paid in full by the individual or person (other than the health plan) on behalf of the individual (45 C.F.R. § 164.522(a)(1)(vi)).

7) Directly or indirectly receive remuneration in exchange for PHI nor engage in any acts that would constitute a Sale of PHI, as defined in 45 C.F.R. § 164.502(a)(5)(ii), except with the prior written consent of IEHP and as permitted by and in compliance with 45 C.F.R. § 164.508(a)(4); however, this prohibition shall not affect payment by IEHP to Business Associate for services provided pursuant to the Underlying Agreement.

8) Use or disclose PHI that is Genetic Information for Underwriting Purposes, as those terms are defined in 45 C.F.R. §§ 160.103 and 164.502(a)(5)(i), respectively.

D. Business Associate agrees that in any instance where applicable state and/or federal laws and/or regulations are more stringent in their requirements than the provisions of HIPAA and/or HITECH (including but not limited to prohibiting the disclosure of mental health, and/or substance abuse records), the more stringent laws and/or regulations shall control the disclosure of PHI.

3. OBLIGATIONS OF IEHP

A. Notification of Restrictions to Use or Disclosure of PHI. IEHP agrees that it will make its best efforts to promptly notify Business Associate in writing of any restrictions, limitations, or changes on the use, access and disclosure of PHI and/or ePHI agreed to by IEHP in accordance with 42 U.S.C. § 17935(a), that may affect Business Associate’s ability to perform its obligations under the Underlying Agreement, or this Agreement.

B. Proper Use of PHI. IEHP shall not request Business Associate to use, access, or disclose PHI and/or ePHI in any manner that would not be permissible under the Privacy Rule, Security Rule, and/or HITECH.

C. Authorizations. IEHP will obtain any authorizations necessary for the use, access, or disclosure of PHI and/or ePHI, so that Business Associate can perform its obligations under this Agreement and/or the Underlying Agreement.

D. Actions in Response to Business Associate Breach. IEHP shall complete the following in the event that IEHP has determined that Business Associate has a Breach:

1) Determine appropriate method of notification to the patient/client(s) regarding a Breach as outlined in 45 C.F.R. § 164.404(d).

2) Send notification to the patient/client(s) without unreasonable delay but in no case later than sixty (60) days of Discovery of the Breach with at least the minimal required elements as follows:

i. Brief description of what happened, including the date of the

Breach and the date of Discovery;

ii. Description of the types of Unsecured PHI involved in the Breach (such as name, date of birth, home address, Social Security number, medical insurance, etc.);

iii. Steps patient/client(s) should take to protect themselves from potential harm resulting from the Breach;

iv. Brief description of what is being done to investigate the Breach, to mitigate harm to patient/client(s) and to protect against any further Breaches; and

v. Contact procedures for patient/client(s) to ask questions or learn additional information, which must include a toll-free telephone number, an E-Mail address, website or postal address.

3) Determine if notice is required to the Secretary.

4) If required, submit Breach information to the Secretary within the required timeframe, in accordance with 45 C.F.R. § 164.408(b).

E. Contract Violations by Business Associate. Pursuant to 45 C.F.R. § 164.504(e)(1)(ii), if IEHP knows of a pattern of activity or practice of the Business Associate that constitutes a material breach or violation of the Business Associate’s obligations under this Agreement, IEHP must take reasonable steps to cure the breach or end the violation. If the steps are unsuccessful, IEHP shall terminate the Agreement, if feasible.

4. OBLIGATIONS OF BUSINESS ASSOCIATE

A. Minimum Necessary. Business Associate shall request, use, access or disclose only the minimum amount of PHI and/or ePHI as permitted or required by this Agreement and as necessary to accomplish the intended purpose of the request, use, access or disclosure in accordance with the Privacy Rule (45 C.F.R. § 164.502(b)(1)).

B. Appropriate Safeguards. Business Associate shall use reasonable and appropriate safeguards and comply, where applicable, with the Security Rule with respect to ePHI, to prevent use or disclosure of PHI and/or ePHI other than as provided for by this Agreement. Business Associate shall implement administrative, physical and technical safeguards in accordance with the Security Rule under 45 C.F.R. §§ 164.308, 164.310, 164.312 and 164.316:

1) Business Associate shall issue and change procedures from time to time to improve electronic data and file security as needed to comply with the measures that may be required by the Privacy Rule or the Security Rule, as applicable, and at all times use an NIST-Approved Technology for all PHI and/or ePHI that is in motion, stored or to be destroyed.

2) Business Associate shall extend such policies and procedures, if applicable, for the protection of physical PHI to prevent, detect, contain and correct security violations, as well as to limit unauthorized physical access to the facility or facilities in which the PHI is housed.

C. Mitigation. Business Associate shall have procedures in place to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use, access or disclosure of PHI and/or ePHI by Business Associate in…