Appendix H - DHS Addendum to Standard Terms and Conditions for Grants and Audit Clause A-B.pdf

APPENDIX H

DHS Addendum to Standard Terms and Conditions for Grants and Audit Clause A/B

DHS Addendum - Grants

DEPARTMENT OF HUMAN SERVICES ADDENDUM TO

STANDARD TERMS AND CONDITIONS FOR GRANTS

1. DEFINITIONS

Capitalized terms used in this addendum that are not otherwise defined in these provisions have the meanings specified in the agreement to which they are attached.

For the purpose of this addendum, the following definitions apply:

“Agreement” means the underlying grant agreement, between the Grantee and the Commonwealth for the provision or performance of services, supplies, goods, leased space, construction, or other activity.

“Background material” means original work, papers, notes, and drafts prepared by the Grantee to support the data and conclusions in final reports and other deliverables, and includes, but is not limited to, completed questionnaires, materials in electronic data processing form, computer programs, other printed materials, pamphlets, maps, drawings, and all data directly related to the services being rendered.

“CDC” means the United States Centers for Disease Control and Prevention.

“Commonwealth” means the Commonwealth of Pennsylvania.

“CWDS” means the Commonwealth Workforce Development System.

“CPP” means the Contractor Partnership Program.

“Department” means the Department of Human Services.

“FBI” means the Federal Bureau of Investigation.

“Grantee” means any person, including, but not limited to, a bidder, offeror, loan recipient, grantee, or lessor, who has furnished or performed or seeks to furnish or perform, goods, supplies, services, leased space, construction, or other activity, under an agreement with the Commonwealth.

“ID” means intellectual disability.

“MH” means mental health.

2. APPLICABILITY

This addendum supplements the standard terms and conditions. Certain terms contained in this addendum may not be applicable to all the goods, supplies, services, leased space, construction, or other activity the Grantee may furnish or perform through its agreement with the Department. These provisions apply only to the extent applicable to the services provided by the Grantee pursuant to this agreement.

3. CONFIDENTIALITY

The parties shall not use or disclose any information about a recipient of the services to be performed under this agreement for any purpose not connected with the parties’ agreement responsibilities except in accordance with applicable state and federal law. If no state or federal law applies, the parties shall not disclose the information except with written consent of the recipient or the recipient’s personal representative.

4. INFORMATION

During the period of this agreement, the Grantee shall make all information obtained by the Grantee through work on the project available to the Department immediately upon demand and in the manner requested by the Department. If requested, the Grantee shall deliver to the Department background material prepared or obtained by the Grantee incident to the performance of this Agreement. The Grantee’s obligations under this provision will survive termination or expiration of this Agreement, and will last as long as the information is retained.

5. CERTIFICATION AND LICENSING

The Grantee shall obtain all necessary licenses, certifications, and permits from Federal, State, and Local authorities permitting it to carry out its activities under this Agreement.

6. PROGRAM SERVICES

Definitions of service, eligibility of recipients of service, and other limitations in this Agreement are subject to modification by amendments to Federal, State, and local laws, regulations, and program requirements without further notice to the Grantee.

7. CHILD PROTECTIVE SERVICE LAWS

In the event that this Agreement calls for services for a child (or children) as defined in 23 Pa.C.S. § 6303, the Grantee shall comply with the provisions of the Child Protective Services Law (23 Pa.C.S. Ch. 63) and all associated regulations promulgated (55 Pa. Code Ch. 3490).

8. PRO-CHILDREN ACT

A. The Grantee shall comply with Public Law 103–227, Title X, Part C, also known as the Pro–Children Act of 1994 (“Act”), 20 U.S.C. § 7183, which imposes restrictions on smoking in facilities where certain federally-funded children’s services are provided. The Act prohibits smoking within any indoor facility (or portion of the facility), whether owned, leased, or contracted for, that is used for the routine or regular provision of: (i) Kindergarten, elementary, or secondary education or library services; or (ii) health or day care services that are provided to children under the age of 18. The statutory prohibition also applies to indoor facilities that are constructed, operated, or maintained with Federal funds, whether directly or through State or local governments.

B. Federal funds include grants, cooperative agreements, loans or loan guarantees, and contracts. The Act does not apply to children’s services provided in private residences, facilities funded solely by Medicare or Medicaid funds, portions of facilities used for impatient drug and alcohol treatment, or facilities where Special Supplemental Nutrition Program for Women, Infants, and Children (commonly known as WIC) coupons are redeemed.

9. MEDICARE/MEDICAID REIMBURSEMENT

A. If services are furnished by the Grantee, subgrantee, subcontractors, or organizations related to the Grantee or its subgrantees or subcontractors, and the services may be claimed by the Commonwealth for Medicare/Medicaid reimbursements, in whole or in part, the Grantee shall comply with 42 C.F.R. Part 420 and shall include a clause in its subcontracts or other agreements requiring its subgrantees or subcontractors or organizations related to the Grantee or its subgrantee or subcontractors to comply with 42 C.F.R. Part

420. Compliance with 42 C.F.R. Part 420 includes, but is not limited to, the following:

i. Preservation of subgrants, subcontracts, books, documents, and records until the expiration of four years after the services are furnished under this Agreement, subgrant, or subcontract.

ii. Full and free access to subgrants and subcontracts, books, documents, and records by the Commonwealth, the U.S. Comptroller General, the U.S. Department of Health and Human Services, and the duly authorized representatives of these entities.

B. The Grantee certifies under penalty of law that it has not been debarred, suspended, terminated, or excluded from the Medicare, Medicaid, or any other State or Federal health care program. If a debarment, suspension, termination, or exclusion occurs during this Agreement term, the Grantee shall immediately notify the Commonwealth.

10. TRAVEL AND PER DIEM EXPENSES

The Grantee shall not be allowed or paid travel or per diem expenses except as provided for in the Grantee’s Budget and included in this Agreement amount. Any reimbursement to the Grantee for travel, lodging or meals under this Agreement must be at or below state rates as provided in Management Directive 230.10, Commonwealth Travel Policy, as may be amended, unless the Grantee has higher rates that have been established by its offices or officials, and published prior to entering into this Agreement. The Grantee shall support higher rates by submitting a copy of the minutes or other official documents to the Department. The Grantee shall provide documentation in support of travel and per diem expenses that is the same as the documentation required of state employees.

11. TAXES

The Commonwealth is exempt from all excise taxes imposed by the Internal Revenue Service and has accordingly registered with the Internal Revenue Service to make tax free purchases under Registration No.

23740001-K. With the exception of purchases of the following items, no exemption certificates are required and none will be issued: undyed diesel fuel, tires, trucks, gas guzzler emergency vehicles, and sports fishing equipment. The Commonwealth is also exempt from Pennsylvania state sales tax, local sales tax, public transportation assistance taxes and fees and vehicle rental tax. The Department of Revenue regulations provide that exemption certificates are not required for sales made to governmental entities and none will be issued.

Nothing in this paragraph is meant to exempt a construction grantee from the payment of any of these taxes or fees which are required to be paid with respect to the purchase, use, rental, or lease of tangible personal property or taxable services used or transferred in connection with the performance of a construction Grant.

12. PROPERTY AND SUPPLIES

A. The Grantee shall obtain all supplies and equipment for use in the performance of this Agreement at the lowest practicable cost and shall purchase by means of competitive bidding whenever required by law.

B. The Department shall retain title to all property furnished in-kind by the Department.

C. The Grantee has title to all personal property acquired by the Grantee, including purchase by lease-purchase contract, for which the Grantee is to be reimbursed under this Agreement. Upon expiration or termination of this Agreement, the Grantee shall dispose of the purchased personal property that has a remaining useful life in accordance with the following provisions:

i. The Grantee and the Department may agree to transfer any item of the purchased property to another grantee or contractor designated by the Department. Cost of transportation will be borne by the grantee or contractor receiving the property and will be reimbursed by the Department. Title to all transferred property will vest in the designated grantee or contractor. The Department shall reimburse the Grantee for its share, if any, of the value of the remaining life of the property in the same manner as provided under subsection ii. below.

ii. If the Grantee wishes to retain any items of the purchased property, the Grantee shall use depreciation tables to ascertain the value of the remaining useful life of the property. The Grantee shall reimburse the Department in the amount determined from the tables.

iii. When authorized by the Department in writing, the Grantee may sell the property and reimburse the Department for its share. The Department may fix the minimum sale price it will accept.

D. All property furnished by the Department or personal property acquired by the Grantee, including purchase by lease-purchase contract, for which the Grantee is to be reimbursed under this Agreement is deemed “Department Property” for the purposes of subsections E., F., and G. of this section.

E. The Grantee shall maintain and administer in accordance with sound business practice a program for the maintenance, repair, protection, preservation, and insurance of Department Property so as to assure its full availability and usefulness.

F. Unless otherwise approved in writing by the Department, the Grantee shall only use Department Property for the performance of this Agreement.

G. If the Grantee is indemnified, reimbursed, or otherwise compensated for any loss, destruction or damage to Department Property, the Grantee shall, at the Department’s direction, use the proceeds to replace, repair, or renovate the property involved; credit the proceeds against the cost of the work covered by this Agreement; or reimburse the Department.

13. HAZARDOUS SUBSTANCES

The Grantee shall provide information to the Commonwealth about the identity and hazards of hazardous substances supplied or used by the Grantee in the performance of the grant. The Grantee shall comply with Act

159 of October 5, 1984, known as the “Worker and Community Right to Know Act” (the “Act”) and the regulations promulgated pursuant thereto at 34 Pa. Code Section 301.1 et seq.

A. Labeling. The Grantee shall clearly labeled, tagged or marked with the information listed in Paragraph (i) through (iv) each individual product (as well as the carton, container or package in which the product is shipped) of any of the following substances (as defined by the Act and the regulations) supplied by the Grantee:

i. Hazardous substances:

a. The chemical name or common name,

b. A hazard warning, and

c. The name, address, and telephone number of the manufacturer.

ii. Hazardous mixtures:

a. The common name, but if none exists, then the trade name,

b. The chemical or common name of special hazardous substances comprising .01% or more of the mixture,

c. The chemical or common name of hazardous substances consisting of 1.0% or more of the mixture,

d. A hazard warning, and

e. The name, address, and telephone number of the manufacturer.

iii. Single chemicals:

a. The chemical name or the common name,

b. A hazard warning, if appropriate, and

c. The name, address, and telephone number of the manufacturer.

iv. Chemical Mixtures:

a. The common name, but if none exists, then the trade name,

b. A hazard warning, if appropriate,

c. The name, address, and telephone number of the manufacturer, and

d. The chemical name or common name of either the top five substances by volume or those substances consisting of 5.0% or more of the mixture.

A common name or trade name may be used only if the use of the name more easily or readily identifies the true nature of the hazardous substance, hazardous mixture, single chemical, or mixture involved.

Container labels must provide a warning as to the specific nature of the hazard arising from the substance in the container.

The hazard warning shall be given in conformity with one of the nationally recognized and accepted systems of providing warnings, and hazard warnings shall be consistent with one or more of the recognized systems throughout the workplace. Examples are:

• NFPA 704, Identification of the Fire Hazards of Materials.

• National Paint and Coatings Association: Hazardous Materials Identification System.

• American Society for Testing and Materials, Safety Alert Pictorial Chart.

• American National Standard Institute, Inc., for the Precautionary Labeling of Hazardous

Industrial Chemicals.

• Labels must be legible and prominently affixed to and displayed on the product and the carton, container, or package so that employees can easily identify the substance or mixture present therein.

B. Material Safety Data Sheet. The Grantee shall provide Material Safety Data Sheets (“MSDS”) with the information required by the Act and the regulations for each hazardous substance or hazardous mixture.

The Grantee shall provide the Commonwealth with an appropriate MSDS with the initial shipment and with the first shipment after an MSDS is updated or product changed. For any other chemical, the Grantee shall provide an appropriate MSDS, if the manufacturer, importer, or supplier produces or possesses the MSDS.

The Grantee shall also notify the Commonwealth when a substance or mixture is subject to the provisions of the Act. Material Safety Data Sheets may be attached to the carton, container, or package mailed to the Commonwealth at the time of shipment.

14. PATENT, COPYRIGHT, TRADEMARK AND TRADE SECRET PROTECTION

The Grantee warrants that it is the sole owner or author of, or has entered into a suitable legal agreement concerning either: a) the design of any product or process provided or used in the performance of the Agreement which is covered by a patent, copyright, or trademark registration or other right duly authorized by state or federal law or b) any copyrighted matter in any report, document or other material provided to the Commonwealth under the grant. The Grantee shall defend any suit or proceeding brought against the Commonwealth on account of any alleged patent, copyright, trademark, or trade secret infringement in the United States of any of the products provided or used in the performance of the grant. The Commonwealth shall give the Grantee prompt notification of any suit or proceeding; full right, authorization, and opportunity to conduct the defense of the suit or proceeding; and full information and all reasonable cooperation for the defense of same. As principles of governmental or public law are involved, the Commonwealth may participate in or choose to conduct, in its sole discretion, the defense of any action. If information and assistance are furnished by the Commonwealth at the Grantee’s written request, it will be at the Grantee’s expense, but the responsibility for the expense will be only that within the Grantee’s written authorization. The Grantee shall indemnify and hold the Commonwealth harmless from all damages, costs, and expenses, including attorney’s fees that the Grantee or the Commonwealth may pay or incur by reason of any infringement or violation of the rights occurring to any holder of copyright, trademark, or patent interests and rights in any products provided or used in the performance of the grant. If any of the products provided by the Grantee in a suit or proceeding are held to constitute infringement and the use is enjoined, the Grantee shall, at its own expense and at its option, either procure the right to continue use of the infringement products, replace them with non-infringement equal performance products or modify them so that they are no longer infringing. If the Grantee is unable to do any of the preceding, the Grantee shall remove all the equipment or software which are obtained contemporaneously with the infringing product, or, at the option of the Commonwealth, only those items of equipment or software which are held to be infringing, and to pay the Commonwealth: 1) any amounts paid by the Commonwealth towards the purchase of the product, less straight line depreciation; 2) any license fee paid by the Commonwealth for the use of any software, less an amount for the period of usage; and 3) the pro rata portion of any maintenance fee representing the time remaining in any period of maintenance paid for. The obligations of the Grantee under this paragraph continue without time limit. No costs or expenses shall be incurred for the account of the Grantee without its written consent.

15. OWNERSHIP RIGHTS

The Commonwealth shall have unrestricted authority to reproduce, distribute, and use any submitted report, data, or material, and any software or modifications and any associated documentation that is designed or developed and delivered to the Commonwealth as part of the performance of the grant.

16. ASSIGNMENT OF ANTITRUST CLAIMS

The parties recognize that in actual economic practice, overcharges by the Grantee’s suppliers resulting from violations of state or federal antitrust laws are in fact borne by the Commonwealth. As part of the consideration for the award of the grant, and intending to be legally bound, the Grantee assigns to the Commonwealth all right, title and interest in and to any claims the Grantee now has, or may acquire, under state or federal antitrust laws relating to the products and services which are the subject of this grant.

17. WARRANTY

The Grantee warrants that all services performed by the Grantee, its agents and subgrantees will be free and clear of any defects in workmanship or materials. Unless otherwise stated in the Agreement, the Grantee warrants all services and parts for a period of one year following completion of performance by the Grantee and acceptance by the Commonwealth. The Grantee shall correct any problem with the service or replace any defective part with a part of equivalent or superior quality without any additional cost to the Commonwealth.

18. COVENANT AGAINST CONTINGENT FEES

The Grantee warrants that no person or selling agency has been employed or retained to solicit or secure the Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except bona fide employees or bona fide established commercial or selling agencies maintained by the Grantee for the purpose of securing business. For breach or violation of this warranty, the Commonwealth may terminate the Agreement without liability or in its discretion deduct from the Agreement price or consideration, or otherwise recover the full amount of any commission, percentage, brokerage, or contingent fee.

19. FORCE MAJUERE

A. Neither party will incur any liability to the other if its performance of any obligation under this Agreement is prevented or delayed by causes beyond its control and without the fault or negligence of either party. Causes beyond a party’s control may include, but are not limited to, acts of God or war, changes in controlling law, regulations, orders or the requirements of any governmental entity, severe weather conditions, civil disorders, natural disasters, fire, epidemics and quarantines, general strikes throughout the trade, and freight embargoes.

B. The Grantee shall notify the Commonwealth orally within 5 days and in writing within 10 days of the date on which the Grantee becomes aware, or should have reasonably become aware, that the cause would prevent or delay its performance. The Grantee shall include in the notification (i) a complete description of each cause and its effect on performance; (ii) a statement of whether performance under the Agreement is prevented or delayed; and (iii) if performance is delayed, a reasonable estimate of the duration of the delay.

The Grantee shall have the burden of proving that the cause or causes delayed or prevented the Grantee’s performance despite the Grantee’s diligent efforts to perform and produce any supporting documentation as the Commonwealth may reasonably request. After receipt of notification, the Commonwealth may elect either to terminate the Agreement or to extend the time for performance as reasonably necessary to compensate for the Grantee’s delay.

C. In the event of a declared emergency by competent governmental authorities, the Commonwealth by notice to the Grantee, may suspend all or a portion of the Agreement.

20. DISASTERS

If, during the term of this Agreement, the Department’s premises are so damaged by flood, fire, or other Acts of God as to render them unfit for use, the Department will have no liability or obligation to the Grantee during the period of time there is no need for the services provided by the Grantee, except that the Department will render compensation to which the Grantee was entitled to under this Agreement prior to the damage.

21. DEFAULT

A. The Commonwealth may, subject to the provisions of Paragraph 19 - Force Majeure, and in addition to its other rights under the Agreement, declare the Grantee in default by providing written notice of the default to the Grantee, and terminate (as provided in Paragraph 18, Termination Provisions) the whole or any part of the Agreement for any of the following reasons:

i. Failure to begin work within the time specified in the Agreement or as otherwise specified;

ii. Failure to perform the work with sufficient labor, equipment, or material necessary to complete the work in accordance with the Agreement terms;

iii. Unsatisfactory performance of the work;

iv. Failure or refusal to remove material, or remove and replace any work rejected as defective or unsatisfactory;

v. Discontinuance of work without approval;

vi. Failure to resume work, which has been discontinued, within a reasonable time after notice to do so;

vii. Insolvency or bankruptcy;

viii. Assignment made for the benefit of creditors;

ix. Failure or refusal within 10 days after written notice by the Department, to make payment or show cause why payment should not be made, of any amounts due for materials furnished, labor supplied or performed, for equipment rentals, or for utility services rendered;

x. Failure to protect, to repair, or to make good any damage or injury to property;

xi. Breach of any provision of this Agreement;

xii. Failure to comply with representations made in its application or agreement; or

xiii. Failure to comply with applicable industry standards, customs, and practice.

B. If the Commonwealth terminates this Agreement in whole or in part as provided in Subparagraph A., the

Commonwealth may procure, upon the terms and in the manner as the Commonwealth determines, services similar or identical to those so terminated, and the Grantee shall be liable to the Commonwealth for any reasonable excess costs for the similar or identical services included within the terminated part of the Agreement.

C. If the Agreement is terminated as provided in Subparagraph A., the Commonwealth, in addition to any other rights provided in this paragraph, may require the Grantee to transfer title and deliver immediately to the Commonwealth in the manner and to the extent directed by the Department, any partially completed work, including, where applicable, reports, working papers and other documentation, as the Grantee has specifically produced or specifically acquired for the performance of the part of the Agreement as has been terminated. Except as provided in Subparagraphs D. and E., payment for completed work accepted by the Commonwealth will be at the Agreement price. Except as provided in Subparagraphs D. and E., payment for partially completed work including, where applicable, reports and working papers, delivered to and accepted by the Commonwealth will be in an amount agreed upon by the parties. The Commonwealth may withhold from amounts otherwise due the Grantee for completed or partially completed works, any sum the Department determines to be necessary to protect the Commonwealth against loss.

D. The rights and remedies of the Commonwealth provided in this paragraph are not exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.

E. The Commonwealth’s failure to exercise any rights or remedies provided in this paragraph will not be construed to be a waiver by the Commonwealth of its rights and remedies in regard to the event of default or any succeeding event of default.

22. SUSPENSION OR DEBARMENT

If the Grantee is suspended or disbarred by the Commonwealth, 4 Pa. Code §§ 60.1-60.7, as may be amended, applies.

23. GRANTEE’S CONFLICT OF INTEREST

The Grantee certifies that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services or furnishment of goods or supplies under this Agreement. The Grantee shall not knowingly employ any person having an interest during the term of this Agreement. The Grantee certifies that no member of the Board of the Grantee or any of its officers or directors has an adverse interest.

24. INTEREST OF THE COMMONWEALTH AND OTHERS

No officer, member, or employee of the Commonwealth and no member of its General Assembly, who exercises any functions or responsibilities under this Agreement, may participate in any decision relating to this Agreement that affects his or her personal interest or the interest of any corporation, partnership, or association in which he or she is, directly or indirectly, interested; nor may any officer, member, or employee of the Commonwealth or member of its General Assembly have interest, direct or indirect, in this Agreement or its proceeds. The Grantee shall comply with all applicable requirements of the State Adverse Interest Act, 71 P.S.

§§ 776.1-776.8, as may be amended.

25. TUBERCULOSIS CONTROL

For all services provided in a state MH facility or a state ID center, the Grantee shall comply with the Guidelines for Preventing the Transmission of Mycobacterium tuberculosis in Health Care Settings, 2005, issued by the CDC, as these guidelines may be updated. The guidelines are available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5417a1.htm?s_cid=rr5417a1_e.

http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5417a1.htm?s_cid=rr5417a1_e

The Department shall provide any required testing free of charge from the state MH/ID facility. If the Grantee service provider has written proof of testing within the last six months, the MH/ID facility will accept this documentation in lieu of administration of a repeat test. If a health care worker employed by the Grantee is unwilling to submit to the test, the Grantee shall complete the risk assessment questionnaire. If the Grantee or its health care worker refuses comply with the guidelines issued by the CDC, the Department may terminate its Agreement without liability.

26. ENVIRONMENTAL PROVISIONS

In the performance of the grant, the Grantee shall minimize pollution and shall strictly comply with all applicable environmental laws and regulations, including, but not limited to, the Clean Streams Law Act of June 22, 1937 (P.L. 1987, No. 394), as amended, 35 P.S. § 691.1 et seq.; the Pennsylvania Solid Waste Management Act, Act of July 7, 1980 (P.L. 380, No. 97), as amended, 35 P.S. § 6018.101 et seq.; and the Dam Safety and Encroachment Act, Act of November 26, 1978 (P.L. 1375, No. 325), as amended, 32 P.S. § 693.1 et seq.

27. POST-CONSUMER RECYCLED CONTENT; RECYCLED CONTENT ENFORCEMENT. (July 2022)

Except as specifically waived by the Commonwealth’s Department of General Services in writing, any products which are provided to the Commonwealth as a part of the performance of the Agreement must meet the minimum percentage levels for total recycled content as specified by the Environmental Protection Agency in its Comprehensive Procurement Guidelines, which can be found at https://www.epa.gov/smm/comprehensive-procurement- guideline-cpg-program.

The Grantee may be required, after delivery of the Agreement item or items, to provide the Commonwealth with documentary evidence that the item or items were in fact produced with the required minimum percentage of post- consumer and recovered material content.

28. GRANTEE RESPONSIBILITY TO EMPLOY DHS CLIENTS

A. If the Grantee was required to submit a CPP Submittal with its bid, quote, application, or proposal, the Grantee’s CPP Submittal and the CPP requirements set forth in the solicitation become part of this Agreement. The Grantee shall submit any proposed changes to its CPP Submittal to the CPP Division of the Department’s Office of Income Maintenance. If this Agreement is assigned to another contractor or grantee, the new contractor or grantee must maintain the CPP requirements of this original Agreement.

B. The Grantee shall, within 10 days of receiving the Effective Date of this Agreement, register in the CWDS.

C. As specified in the solicitation, the Grantee shall submit Quarterly Employment Reports to the Office of Income Maintenance Central Office of Employment and Training, CPP Division. On a quarterly basis, the Grantee shall provide information on the use and outcomes of hiring strategies and demonstrating good faith efforts to hire TANF beneficiaries.

D. If the Grantee is non-compliant, the CPP Division will contact the designated Agreement Administrator or Grant Administrator to request corrective action.

29. OLDER ADULTS PROTECTIVE SERVICES ACT APPLICATION TO THE GRANTEE

The Grantee shall submit information obtained within the preceding one-year period for any personnel providing services in a facility, as defined in 35 P.S. § 10225.102, who will have or may have direct contact with residents of a Department-operated facility or unsupervised access to their personal living quarters in accordance with the following:

A. Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal history record information) a report of criminal history information from the Pennsylvania State Police or a statement from the State Police that their central repository contains no information relating to that person. The criminal history record information will be limited to that which is disseminated pursuant to 18 Pa.C.S. 9121(b)(2) (relating to general regulations).

The Grantee shall apply to the State Police for clearance at its own expense. The forms are available online at https://epatch.pa.gov/home.

B. Where the Grantee’s personnel are not, and for the two years immediately preceding the date of execution https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program https://epatch.pa.gov/home of a contract or agreement, have not been a resident of this Commonwealth, the Grantee shall submit, at its own expense, a report of Federal criminal history record information pursuant to the FBI’s appropriation under the Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act, 1973 (Public Law 92-544, 86 Stat. 1109). Information regarding the fingerprinting process for FBI background checks mandated by the Older Adults Protective Services Act is available at https://www.aging.pa.gov/organization/advocacy-and-protection/Pages/Criminal-History- Background-Checks.aspx. The Department shall use the information obtained from the criminal record check to determine the individual’s eligibility. The Grantee shall submit the determination to the Department before Grantee’s personnel provide services at the Department’s facility. The Department shall maintain confidentiality of the information. The provisions of 18 Pa. C.S. § 9121(b)(2) will not apply if the request for a report of Federal criminal history record information is made pursuant to this section.

For personnel hired after execution of this Agreement, the Grantee shall forward all Pennsylvania State Police Criminal History Background Reports or FBI background checks of its personnel, as applicable, when received.

The Grantee’s failure to forward Pennsylvania State Police Criminal History Background Reports or FBI background checks, as applicable, within 60 days of receipt, may result in termination of this Agreement.

Personnel may not have direct contact with residents of a Department-operated facility or unsupervised access to their personal living quarters until the Grantee provides the Department with the applicable background check.

30. DATA BREACH OR LOSS

The Grantee shall comply with all applicable data protection, data security, data privacy, and data breach notification laws, including, but not limited to, the Breach of Personal Information Notification Act, 73 P.S. §§ 2301-2330, as amended.

31. OTHER FEDERAL REQUIREMENTS

The Grantee shall comply with the requirements set forth in this section when: (i) this Agreement is funded in whole or in part with federal funds; and (ii) the listed requirements are applicable to the Grantee and to the services or supplies provided under this Agreement.

A. The Grantee shall comply with the following, as applicable:

i. 2 C.F.R. Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards;

ii. 45 C.F.R. §§ 75.330, Contracting with Small and Minority Businesses, Women’s Business Enterprises, and Labor Surplus Area Firms;

iii. 45 C.F.R. § 75.331, Procurement of Recovered Materials;

iv. 45 C.F.R. § 75.364, Access to Records;

v. 45 C.F.R § 95.615, Access to System and Records; and

vi. 45 C.F.R. § 75.112, Conflict of Interest.

B. If this Agreement is a prime construction contract in excess of $2,000, the Grantee shall comply with the Davis-Bacon Act, 40 U.S.C. §§ 3141-3148, as amended, as supplemented by U.S. Department of Labor regulations, 29 C.F.R. Part 5, and the Copeland “Anti-Kickback” Act, 40 U.S.C. § 3145, as supplemented by U.S. Department of Labor regulations, 29 C.F.R. Part 3, when required by Federal program legislation, C. If the Agreement amount is $100,000 or more and the Agreement involves the employment of mechanics or laborers, the Grantee shall comply with the Contract Work Hours and Safety Standards Act, 40 U.S.C.

§§ 3701-3708, as supplemented by U.S. Department of Labor regulations, 2 C.F.R. Part 5.

D. If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the Grantee, subgrantee, or subcontractor wish to enter into a contract with a small business firm or nonprofit organization regarding the substation of parties, assignment or performance of experimental, developmental, or research work under that funding agreement, the Grantee shall comply with 37 C.F.R.

Part 401 and any implementing regulations issued by the awarding federal agency.

E. If the Agreement amount is $150,000 or more, the Grantee shall comply with all applicable standards, https://www.aging.pa.gov/organization/advocacy-and-protection/Pages/Criminal-History-Background-Checks.aspx https://www.aging.pa.gov/organization/advocacy-and-protection/Pages/Criminal-History-Background-Checks.aspx orders, or regulations issued pursuant to the Clean Air Act, 42 U.S.C. §§ 7401-7671q, and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, as amended.

F. If the Agreement amount is $100,000 or more, the Grantee shall comply with the Bird Anti-Lobbying Amendment, 31 U.S.C § 1352.

G. In accordance with 45 C.F.R. § 75.308(c)(1)(ii), the Department must request federal approval before executing any Key Personnel changes. The Grantee shall notify the Department of all Key Personnel changes to enable the Department to comply with this requirement.

H. The Department may not make a contract or grant award to parties listed on the government-wide exclusions in the System for Award Management, in accordance with the OMB guidelines at 2 C.F.R. Part 180 that implement Executive Orders 12549 and 12689, Debarment and Suspension. The Grantee certifies under penalty of law that it is not listed on the government-wide exclusions in the System for Award Management.

I. Except as provided under 41 C.F.R. Part 60, if this Contract meets the definition of “federally assisted construction contract” in 41 C.F.R. Part 60-1.3, the Grantee shall comply with the following provision:

During the performance of this Contract, the Grantee agrees as follows:

(1) The Grantee will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Grantee will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. These actions include, but are not limited to, the following:

Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Grantee agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

(2) The Grantee will, in all solicitations or advertisements for employees placed by or on behalf of the Grantee, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

(3) The Grantee will not discharge or in any other manner discriminate against any employee or applicant for employment because the employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of the employee’s essential job functions discloses the compensation of other employees or applicants to individuals who do not otherwise have access to the information, unless the disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Grantee’s legal duty to furnish information.

(4) The Grantee will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers’ representatives of the Grantee’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(5) The Grantee will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

(6) The Grantee will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with these rules, regulations, and orders.

(7) In the event of the Grantee’s noncompliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Grantee may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in

Executive Order 11246 of September 24, 1965, and any other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

(8) The Grantee will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that the provisions will be binding upon each subgrantee, subcontractor, or vendor. The Grantee will take any action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing these provisions, including sanctions for noncompliance:

Provided, however, that in the event the Grantee becomes involved in, or is threatened with, litigation with a subcontractor, subgrantee, or vendor as a result of the direction by the administering agency, the Grantee may request the United States to enter into litigation to protect the interests of the United States.

32. LOBBYING CERTIFICATION AND DISCLOSURE

(applicable to contracts $100,000 or more)

Commonwealth agencies will not contract with outside firms or individuals to perform lobbying services, regardless of the source of funds. With respect to an award of a federal contract, grant, or cooperative agreement exceeding $100,000 or an award of a federal loan or a commitment providing for the United States to ensure or guarantee a loan exceeding $150,000, all recipients shall certify that they will not use federal funds for lobbying and shall disclose the use of non-federal funds for lobbying by filing required documentation. The Grantee shall complete and return a “Lobbying Certification Form” and, if applicable, a “Disclosure of Lobbying Activities form” with their signed Contract, and the forms will be made attachments to the Contract or Agreement.

33. AUDIT CLAUSE

This Agreement is subject to audit in accordance with the attached Audit Clause. The Grantee shall comply with all the requirements set forth in the Audit Clause.

34. SURVIVAL

Paragraphs 11, 14, 15, 16, and 17, and any right or obligation of the parties in this agreement which, by its express terms or nature and context is intended to survive termination or expiration of this agreement, will survive the expiration or termination of this agreement.

SUBRECIPIENT / CONTRACTOR AUDITS

AUDIT CLAUSE A/B – SUBRECIPIENT

Reissued October 2024 DHS AUDIT POLICIES (Replacing March 2022) Attachment II – Audit Clause A/B

The Commonwealth of Pennsylvania, Department of Human Services (DHS), distributes federal and state funds to local governments, non-profit, and for-profit organizations. Federal expenditures are subject to federal audit requirements, and federal and state funding passed through DHS are subject to DHS audit requirements. Any federal statute prescribing specific policies or specific requirements that differ from the standards provided herein shall govern. The DHS provides the following audit requirements in accordance with the Commonwealth of Pennsylvania, Governor’s Office, Management Directive 325.09, as amended January 10, 2022.

Subrecipient means a non-federal entity that expends federal awards received from a pass-through entity to carry out a federal program but does not include an individual that is a beneficiary of such a program. A subrecipient may also be a recipient of other federal awards received directly from a federal awarding agency (see the definition of subrecipient in 2 CFR Part 200 § 200.1). For purposes of this audit clause, a subrecipient is not a contractor as defined in 2 CFR Part 200 § 200.1.

Subrecipients must comply with all federal audit requirements and any other applicable law or regulation, as well as any other applicable law or regulation that may be enacted or promulgated by the federal government.

A. Federal Audit Requirements

Federal Audit Requirements Specific to Local Governments and Nonprofit Organizations

If a local government or nonprofit organization expends federal awards of $1,000,000 or more during its fiscal year, received either directly from the federal government, indirectly from a pass-through entity, or a combination of both, to carry out a federal program, it is required to have an audit conducted in accordance with the provisions outlined in 2 CFR Part 200.501, Audit Requirements.

Federal Audit Requirements Specific to For-Profit Organizations

A for-profit organization is required to have an audit if it expends a total of $1,000,000 or more in federal funds under one or more Department of Health and Human Services (DHHS) federal awards. Title 45, CFR 75.501(a) incorporates the thresholds and deadlines of 2 CFR Part 200 as amended, and provides for-profit organizations with two options regarding the type of audit that will satisfy the audit requirements:

1. A financial audit conducted in accordance with generally accepted Government Auditing

Standards (The Yellow Book), revised; or

2. An audit that meets the requirements contained in 2 CFR Part 200.

Federal Audit Requirements Applicable to Local Governments and Nonprofit Organizations, and to For-Profit Organizations

If a subrecipient expends total federal awards of less than $1,000,000 during its fiscal year, it is exempt from these federal audit requirements but is required to maintain auditable records of federal or state funds that supplement such awards. Records must be available for review by appropriate officials. Although an audit may not be necessary under the federal requirements, DHS audit requirements may be applicable.

B. DHS Audit Requirements

Subrecipients must meet the following DHS audit requirements:

Where a Single Audit or program-specific audit is conducted in accordance with the federal audit requirements referenced above, DHS will accept such audit provided that:

1. A full copy of the audit report is submitted as detailed below; and

2. The subrecipient shall ensure that the audit requirements are met for the terms of this contract;

i.e., the prescribed Agreed-Upon Procedures (AUP) Report(s) and applicable schedule requirement(s). The incremental cost for preparation of the AUP Report(s) and the schedule cannot be charged to federal funding streams.

In the absence of a federally required audit, the entity is responsible for following the annual audit requirements described below, which are based upon the program year specified in this agreement.

DHS Audit Requirements Specific to Subrecipients

Subrecipients that expend $1,000,000 or more in combined state and federal funds, but less than $1,000,000 in federal funds, during the program year are required to have an audit of those funds made in accordance with generally accepted Government Auditing Standards (The Yellow Book), revised, as published by the Comptroller General of the United States. Where such an audit is not required to meet the federal requirements, the costs related to DHS audit requirements may not be charged to federal funding streams.

If in connection with the agreement, a subrecipient expends $750,000 or more in combined state and federal funds, but less than $1,000,000 in combined state and federal funds, during the program year, the subrecipient shall ensure that, for the term of the contract, an independent auditor conducts annual examinations of its compliance with the terms and conditions of this contract (compliance attestations). These examinations shall be conducted in accordance with the American Institute of Certified Public Accountants’ Statements on Standards for Attestation Engagements, No. 18, Attestation Standards: Clarification and Recodification (SSAE 18) and shall be of a scope acceptable to the DHS. The initial compliance attestation shall be completed for the program year specified in the contract and conducted annually thereafter. The incremental cost for preparation of the compliance attestation reports cannot be charged to federal funding streams.

The subrecipient shall submit the compliance attestation reports (if applicable) to the DHS within

90 days after the program year has been completed. When the compliance attestation reports are other than unmodified, the subrecipient shall submit to the DHS, in addition to the compliance attestation reports, a plan describing what actions the subrecipient will implement to correct the situation that caused the auditor to issue other than an unmodified report, a timetable for implementing the planned corrective actions, and a process for monitoring compliance with the timetable and a contact person who is responsible for the resolution of the situation.

If the subrecipient enters into an agreement with a subcontractor(s) for the performance of any primary contractual duties, the audit requirements are applicable to the subcontractor(s) with whom the subrecipient has…