Attachment 5_DRAFT Model Contract.docx

COMMONWEALTH OF MASSACHUSETTS

PREFERRED SUPPLIER FOR DME INCONTINENCE PRODUCTS AGREEMENT

Between

THE MASSACHUSETTS EXECUTIVE OFFICE OF

HEALTH AND HUMAN SERVICES

And

[INCONTINENCE PRODUCTS SUPPLIER]

This Preferred Supplier for Durable Medical Equipment (DME) Incontinence Products Agreement (“Agreement”) is dated as of this [XXX] day of [MONTH], [YEAR], by and between the Massachusetts Executive Office of Health and Human Services (EOHHS), the single state agency for the administration of MassHealth, the medical assistance and benefit program pursuant to Title XIX of the Social Security Act (42 U.S.C. 1396 et. seq.), Title XXI of the Social Security Act (42 U.S.C. 1397aa et. seq.), M.G.L. c. 118E, and other applicable laws and waivers; and [INCONTINENCE PRODUCTS SUPPLIER] (“_______________,” “Contractor,” or “Preferred Supplier”)(together, the “Parties”).

RECITALS

WHEREAS, EOHHS has the authority pursuant to inter alia M.G.L. c. 118E, s. 12 to enter into any types of agreements with providers and manufacturers of medical services, equipment and supplies as necessary to carry out its duties, including preferred provider and volume purchase contracts; and

WHEREAS, on March 31, 2017, EOHHS posted on the Commonwealth of Massachusetts procurement website (COMMBUYS www.commbuys.com), a Request for Responses for a Preferred Supplier for the Provision of DME Incontinence Products (RFR Document Number: 17CBEHSDMEINCONTINENCEPRODUCTS)(the RFR”), and, on ___________, 2017, EOHHS selected the Contractor based on its response to the RFR; and

WHEREAS, [INCONTINENCE PRODUCTS SUPPLIER] is in the business of wholesale distribution and supply of DME and Medical Supplies incontinence products; and

WHEREAS, [INCONTINENCE PRODUCTS SUPPLIER] appears qualified and is willing to perform its duties as set forth herein subject to the terms and conditions thereof;

NOW THEREFORE, in consideration of the foregoing and of the representations, warranties and covenants set forth below, the parties agree as follows:

definitions As used herein, the following terms shall have the meanings set forth below:

Covered Products – Incontinence related products corresponding to those certain HCPCS codes and fitting the definitions and descriptions of such codes identified in Attachment A of this Agreement and subject to the minimum product specifications set forth in Section 3.10, as Attachment A and Section 3.10 may be updated from time to time during the term of the Agreement pursuant to an amendment signed by EOHHS and [INCONTINENCE PRODUCTS SUPPLIER].

Defect – an imperfection, flaw, or deficiency in any Covered Product, whether tangible or intangible, that substantially prevents the item or service from operating or functioning as designed or according to its specifications.

DME Provider (or Provider) - an organization or individual, including a DME Specialty Provider, that has enrolled with MassHealth and has signed a provider contract with the MassHealth agency in accordance with 130 CMR 409.404 and 450.000: Administrative and Billing Regulations.

Durable Medical Equipment - as defined in 130 CMR 409.402, and as may be amended from time to time, equipment that:

(1) is used primarily and customarily to serve a medical purpose;

(2) is generally not useful in the absence of disability, illness, or injury;

(3) can withstand repeated use over an extended period; and

(4) is appropriate for use in the member’s home.

EOHHS - Massachusetts Executive Office of Health and Human Services (EOHHS), the single state agency for the administration of MassHealth, the medical assistance and benefit program or its designee pursuant to Title XIX of the Social Security Act (42 U.S.C. 1396 et. seq.), Title XXI of the Social Security Act (42 U.S.C. 1397aa et. seq.), M.G.L. c. 118E, and other applicable laws and waivers.

MassHealth – the medical assistance and benefit programs administered by EOHHS or its designee pursuant to Title XIX of the Social Security Act (42 U.S.C. 1396 et. seq.), Title XXI of the Social Security Act (42 U.S.C. 1397aa et. seq.), M.G.L. C. 118E, and other applicable laws and waivers.

MassHealth Member - any person enrolled in Massachusetts Medicaid and eligible to receive covered services. For purposes of this Agreement, this includes both MassHealth members for whom claims are submitted to MassHealth for covered services on a fee-for-service basis (including but not limited to members enrolled in the MassHealth Primary Care Clinician Plan or a MassHealth Primary Care Accountable Care Organization).

Material Subcontractor - any entity with whom the Contractor subcontracts for the provision of all or part of its core activities that relate to its performance of its responsibilities for this Agreement.

Medical Supplies – as defined in 130 CMR 409.402, as amended from time to time, consumable or disposable supplies or devices for home use necessary for the treatment of a specific illness, injury, disease, or disability, including, but not limited to test strips, syringes, ostomy products, and surgical items that are:

(1) required to address an individual medical disability, illness, or injury;

(2) generally not useful in the absence of illness or injury;

(3) consumable or disposable;

(4) cannot withstand repeated use by more than one individual; and

(5) appropriate for use in any setting in which normal life activities take place, other than a hospital, nursing facility, intermediate care facility for individuals with intellectual disabilities or any setting in which payment is or could be made under Medicaid inpatient services that includes room and board.

Preferred Supplier – a supplier of DME with whom EOHHS has entered into a preferred supplier contract to supply specified DME at a specified rate to MassHealth DME Providers.

Prior Authorization (or PA) – approval from EOHHS or a Participating MassHealth MCE or their agent(s), that is required in certain instances before a MassHealth provider may supply medical services, including DME. Prior Authorization determines only the medical necessity of an authorized service.

Total Unit Price – the price for each Covered Product (HCPCS code) listed in Attachment A which the Preferred Supplier agrees to charge to MassHealth DME Providers that enter into agreements with the Preferred Supplier. The Total Unit Price includes, but is not limited to, shipping and delivery costs; provider outreach and education; product returns and order management; and EOHHS minimum quality standards.

EOHHS Obligations Prior Authorization Nothing in this Agreement shall prohibit EOHHS from requiring Prior Authorization for any Covered Product or any other product or service.

MassHealth DME Provider Network EOHHS or its agent shall, on a monthly basis, provide its current list of MassHealth DME Providers to the Contractor.

Nothing in this Agreement shall prohibit EOHHS from expanding the scope of eligibility categories of MassHealth members whose MassHealth participating providers may engage in contracting with the Contractor to obtain pricing pursuant to this Agreement.

Patient Information EOHHS, its agents, employees and contractors shall not provide the Preferred Supplier with any patient identifiable information or protected health information (“PHI”) or any other information to the extent prohibited by laws or regulations governing confidentiality of medical or other information.

Discretion to Secure Additional Savings Nothing in this Agreement shall prohibit EOHHS from entering into a preferred supplier agreement with any other DME suppliers for any classes of HCPCS codes other than those listed in Attachment A.

[INCONTINENCE PRODUCTS SUPPLIER] obligations Prompt Delivery The Preferred Supplier shall ship all orders within 24 hours of receipt and ensure that the MassHealth DME Providers will receive all deliveries within 3 business days of the date the order was is placed. The Preferred Supplier shall have inventory or arrangements adequate to ship all orders within 24 hours of receipt and ensure all deliveries are received by DME Providers within 3 business days.

No Minimum Quantity Order The Preferred Supplier shall not require a minimum unit order quantity.

Availability of Product Options The Preferred Supplier shall make product options, sizing/fit and minimum quality standards ratings immediately available to MassHealth DME Providers upon request through the live customer support during normal business hours, or shall make such options available 24 hours per day, 7 days per week via the preferred supplier’s website. MassHealth DME Providers shall be able to place orders with the Preferred Supplier 24 hours per day, 7 days per week either online, via fax, or through a dedicated toll free phone line.

Customer Service Support The Preferred Supplier’s customer service support must provide live call support that shall be available, at a minimum, during normal business hours of 9 a.m. to 5 p.m. ET (Eastern Time). The Preferred Supplier shall have a complaint resolution process in place to address unanswered or unresolved questions and concerns. Email responses to MassHealth DME Providers shall be returned by the Preferred Supplier within 2 business days.

Samples The Preferred Supplier shall make product samples available to DME Providers upon their request, free of charge.

Reporting Ad hoc — The Preferred Supplier shall provide any ad hoc reports upon request by EOHHS.

Monthly - The Preferred Supplier shall report to EOHHS, on a monthly basis or such other time frame established by EOHHS:

A. The total units supplied to MassHealth DME Providers, itemized by Provider, per HCPCS code, including statistics for the current month as well as the year to date data. Units supplied will be defined as the units/quantity shipped to MassHealth DME Providers.

B. Information regarding the timeliness of order delivery (number of business days from receipt of order to delivery to DME Provider); including the total number of deliveries, the number of business days from receipt of order to delivery; including a breakdown of the total number of deliveries within three (3) business days of receipt of order, the total number of deliveries not within three (3) business days, and the average number of business days from receipt of order to delivery for deliveries not resolved within three (3) business days.

C. Information and updates regarding any discontinued or changed Covered Products, including test results for replacement products.

These monthly reports are due to EOHHS not more than 30 days after the end of the prior calendar month.

Quarterly -The Preferred Supplier shall make good faith efforts to resolve any DME Provider or MassHealth Member complaints within five (5) business days of receipt and report to EOHHS quarterly regarding those complaints and resolutions. Such reports shall indicate the number of complaints from DME Providers and MassHealth Members; the reason for the complaint (including whether the complaint concerns a product defect); and include a breakdown of the total number of complaints resolved within five business days of receipt, the total number of complaints not resolved within five business days, and the average number of days from receipt of complaint to resolution for complaints not resolved within five business days.

The Preferred Supplier shall provide quarterly reports to EOHHS on its SDP Plan quarterly and year to date spending (see SDP Plan Form #3 available at www.mass.gov/sdp).

Semi-annually – On a semi-annual basis, or more frequently, as determined by EOHHS, the Preferred Supplier shall participate in a contract performance review meeting, at a state office location designated by EOHHS. The format of the contract performance review meeting will be developed by EOHHS, with input from the Preferred Supplier.

Annually – On an annual basis, the Preferred Supplier shall provide EOHHS or its agent with at least one of the following:

1. The current Dun & Bradstreet report on the Preferred Supplier and, if requested by EOHHS, such report for any Material Subcontractor(s);

2. The Preferred Supplier’s most recent, completed, independent, audited financial statements and most recent unaudited quarterly financial statement.

Maintaining DME Provider List The Preferred Supplier shall coordinate with EOHHS or its agent to periodically obtain a current list, provided by EOHHS or its agent, of the enrolled MassHealth DME Providers eligible to purchase products at the Total Unit Prices set forth in Attachment A of this Agreement, to ensure all eligible, interested providers receive the contracted purchase rates. The list of DME Providers as of [DATE] is included in Attachment B of this Agreement. The Preferred Supplier shall maintain an updated list of eligible enrolled DME Providers by, at a minimum, updating its list of enrolled MassHealth DME Providers eligible to purchase products under this Agreement, within three (3) business days of its receipt of a new list from EOHHS or its agent.

Minimum Products per Code, Defective Products The Preferred Supplier shall offer a minimum of two (2) products for each Covered Product HCPCS code. In the event the Preferred Suppler intends to offer less than two products corresponding to any Covered Product HCPCS code, the Preferred Supplier must receive prior written approval from EOHHS, regardless of whether the reduction in product offering is expected to be temporary, short term, or long term. The Preferred Supplier shall guarantee all Covered Products against defect. Any Covered Products determined to be defective by EOHHS shall be replaced by the Preferred Supplier at no cost to EOHHS or the MassHealth DME Provider.

Size Range The Preferred Supplier shall offer to DME Providers a full range of sizes for each Covered Product.

Minimum Product Specifications and Independent Testing The Preferred Supplier shall ensure that all Covered Products furnished to DME Providers pursuant to this Agreement comply with standards adopted and periodically updated by the National Association for Continence (NAFC) and meet the minimum product specifications listed below:

Additionally, Preferred Supplier shall submit test results to EOHHS, or to MassHealth DME Providers, upon request, from an independent testing laboratory which describe each adult and youth sized Covered Products’ performance ratings for each of the minimum quality control measures listed in the preceding paragraph.

EOHHS reserves the right to update its standards or adopt alternative quality standards.

Distribution Infrastructure The Preferred Supplier shall demonstrate to the satisfaction of EOHHS that it has an operating distribution infrastructure within Massachusetts or shall establish a satisfactory distribution infrastructure within Massachusetts not later than 60 days after the effective date of this Agreement.

Supply and Payment Arrangements with DME Providers The Preferred Supplier shall enter into agreements or make other arrangements in order to supply Covered Products to any interested DME Providers and to collect payment from any interested DME Providers at not more than the Total Unit Prices set forth in Attachment A.

Such agreements or other written arrangements shall include any privacy and/or security terms and conditions (including those necessary for a business associate agreement or arrangement pursuant to 45 CFR Parts 160 and 164) with DME Providers that may be deemed necessary by such providers.

Payment There shall be no monetary exchange between the Preferred Supplier and EOHHS. MassHealth DME Providers purchasing Covered Products shall be solely responsible for all payments to the Preferred Supplier at not more than the Total Unit Prices established in Attachment A, and the Preferred Supplier shall charge MassHealth DME Providers not more than the Total Unit Price set forth in Attachment A.

The Preferred Supplier shall be solely responsible for collecting receivables from DME Providers. DME Providers will be responsible for paying the Preferred Supplier for Covered Products consistent with any agreement or other arrangement between the Preferred Supplier and the DME Provider. EOHHS shall not be responsible for the resolution or processing of any questions or issues related to payment that may arise between the Preferred Supplier and a DME Provider.

Contract Volumes Nothing in this Agreement or its related documents constitutes a minimum or maximum product volume guarantee for any Covered Product. Any description regarding product volume or quantities, or numbers of MassHealth Members served set forth in this Agreement or its related documents are estimates and are included for informational purposes only. The Preferred Supplier shall supply, at the Total Unit Prices set forth in Attachment A, actual quantities of Covered Products as ordered by DME Providers consistent with this Agreement.

Cooperation with Corrective Action Plan The Preferred Supplier shall comply with any Corrective Action Plan resulting from application of Sections 6.19 or 6.20 of this Agreement.

CONTRACT IMPLEMENTATION

Section 4.1 Implementation Period (8 weeks)

Within eight (8) weeks of the effective date of this Agreement or as otherwise specified below, the Preferred Supplier shall:

1. Establish any necessary business arrangements with DME Providers pursuant to Section 3.12;

2. Arrange for DME Providers to obtain an appropriate stock of Covered Products;

3. Assign and identify Preferred Supplier staffing, including:

a. Contract manager – the Preferred Provider shall designate a Contract Manager as of the effective date of this Agreement.

i. Preferred Supplier Contract Manager [INSERT NAME AND CONTACT INFORMATION]

b. Project staff team, including, but not limited to:

i. Customer Service Lead;

ii. Quality Assurance Lead;

iii. Network Administration Lead; and

iv. Compliance Lead.

4. Furnish EOHHS with the following implementation deliverables:

a. Implementation workplan, including timelines and dependencies within two weeks of contract execution;

b. Weekly implementation updates for the eight weeks following contract execution;

c. Outreach materials for DME Providers within 3 weeks of contract execution, which may include

i. Ordering methodology

ii. Samples

iii. Training materials

d. A certification of Contractor Readiness and Subcontractor Performance in a form specified by EOHHS, certifying the Contractor’s ability and commitment to be ready to perform its responsibilities under this Agreement in their entirety within 8 weeks of execution of the Agreement.

The Preferred Supplier shall not change its Preferred Supplier contract manager or project staff team members during the Implementation Period unless such replacement is necessary due to sickness, death, job/position change, termination of employment, unpaid leave of absence, or request by EOHHS. Any changes to the preferred Supplier’s project staff for any other reason shall require prior written notice to EOHHS. Any replacement Preferred Supplier contract manager or project staff team members shall have comparable or greater skills with regard to performance of the contract implementation project as the staff being replaced, and shall be subject to the provisions of the Agreement.

A list of the Preferred Supplier’s key staff and a summary of their responsibilities is set forth in RFR Attachment 6, Exhibit 2.

At the end of the Implementation Period, the Total Unit Prices set forth in Attachment A shall become effective.

Section 4.2 Transition from Existing Model

During the Implementation Period, the Parties shall collaborate on:

1. DME Provider and MassHealth Member education;

2. Determining additional communication strategies to promote participation by DME Providers; and

3. EOHHS implementation of regulatory amendments and/or subregulatory materials.

Term and termination Effective Date; Termination Effective Date and Term of Agreement This Agreement shall be effective [DATE] [footnoteRef:2], and shall continue in force through [DATE], unless it is terminated sooner pursuant to Section 5.1.B, below, or extended by an amendment in writing signed by both parties in accordance with Section 5.3, below. This Agreement may be extended for up to two (2) additional years, in any increment at EOHHS’ option, upon terms agreed to by the parties. [2: Dates will be inserted by EOHHS at contract execution, and will provide for a 3-year initial term. Not for use by Bidders. ]

Termination Termination by Contractor Without Cause

The Preferred Supplier may terminate this Agreement without cause as of the end of any calendar quarter by providing 120 days prior written notice to EOHHS.

Termination by EOHHS Without Cause EOHHS may terminate this Agreement without cause as of the end of any calendar quarter by giving [INCONTINENCE PRODUCTS SUPPLIER] thirty (30) days prior written notice.

Accrued Obligations/Remedies The expiration or termination of this Agreement shall not affect any rights or obligations of the parties that have accrued prior to the effective date of such termination. The fact that either party exercises any right of termination it may have under this Agreement shall not prevent such party from pursuing any other remedy it may be entitled to in law or equity. Any remedy provided herein shall not be deemed an exclusive remedy unless expressly provided for as such.

Execution This Agreement shall be binding only upon signature by both parties. This Agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document.

MISCELLANEOUS

Record Keeping and Audit The parties agree that federal and Commonwealth record retention and freedom of information laws, regulations and policies govern this Agreement. As such, the parties agree that they shall retain all records relating to this Agreement for seven (7) years after the execution of this Agreement or the creation of the record, whichever is later, or for such longer period as is required by State or federal law or necessary for resolution of any litigation, claim, negotiation, audit or inquiry involving the Agreement.

Confidentiality [INCONTINENCE PRODUCTS SUPPLIER] shall comply with all applicable state and federal laws, regulations, policies and procedures relating to confidentiality, privacy, security and/or management of confidential information or other Commonwealth data that is used, accessed, received, created, maintained, disclosed, transmitted or otherwise obtained by [INCONTINENCE PRODUCTS SUPPLIER] or its agents or subcontractors in the course of its performance of this Agreement. For purposes hereof, “confidential information” includes personal data (as such term is used in M.G.L. 66A), personal information (as such term is used in M.G.L. 93H), protected health information (as such term is used in 45 CFR Parts 160 and 164), security procedures, business operations information, proprietary information or other information treated that is treated as confidential.

[INCONTINENCE PRODUCTS SUPPLIER] shall enter into and comply with any other agreement relating to the privacy, security or management of confidential information or other Commonwealth data that EOHHS may deem necessary or appropriate including, without limitation, a business associate agreement or arrangement pursuant to 45 CFR Parts 160 and 164.

As noted in Section 2.3 above, [INCONTINENCE PRODUCTS SUPPLIER] shall also enter into any privacy and/or security agreements (including business associate agreements or arrangements pursuant to 45 CFR Parts 160 and 164) with DME Providers that such providers may deem necessary.

Notices Unless the method of delivery is otherwise specified in another section of this Agreement, any notice required or permitted to be given by either party to the other under this Agreement shall be given in person or sent by first class mail or express delivery, addressed to the other party at the address set forth below.

To [INCONTINENCE PRODUCTS SUPPLIER]:

[INCONTINENCE PRODUCTS SUPPLIER]

[ADDRESS]

To EOHHS:

Massachusetts Executive Office of Health and Human Services

[INSERT ADDRESS]

Attn: [INSERT NAME AND TITLE]

Unless otherwise specified in another section of this Agreement, notice will be deemed received three days after it is postmarked, if delivery is by first class or express mail, or one day after the date delivered as specified on the delivery slip if delivery is given in person.

Force Majeure Noncompliance with any obligations hereunder due to force majeure, such as acts of God, laws or regulations of any government, war, civil commotion, destruction of production facilities and materials, fire, earthquake or storm, labor disturbances, shortage of materials, failure of public utilities or common carriers, and any other causes beyond the reasonable control of the parties, shall not constitute breach of contract. Dates of performance shall be extended to the extent of delays excused by this Section, provided that the party whose performance is affected notifies the other party promptly of the existence and nature of delay.

Assignment Neither party shall have the right to assign this Agreement to a third party without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any permitted assignee shall assume all obligations of its assignor under this Agreement. No assignment shall relieve any party of responsibility for the performance of any obligations that have accrued prior to such assignment.

No Waiver of Rights The failure of either party to insist upon the strict observation or performance of any provision of this Agreement or to exercise any right or remedy shall not impair or waive any such right or remedy in the future. Every right and remedy given by this Agreement to the parties may be exercised from time to time as often as appropriate.

Option to Modify Scope/Amendments EOHHS reserves the right, at its discretion and at any time during the term of the Agreement, to modify any provision in the Agreement when EOHHS deems necessary or reasonable to reflect any change in policy or program goals, including, without limitation, to modify the scope of the Agreement, including to modify, increase, or reduce the list of Covered Products, to update the Total Unit Prices for Covered Products, or to extend the terms of this Agreement to participating MassHealth managed care entities. EOHHS additionally reserves the right, at its discretion and at any time during the term of the Agreement, to amend the Agreement to implement state or federal statutory or regulatory requirements, judicial orders, settlement agreements, or any state or federal requirements, initiatives or changes affecting the MassHealth program. In the event that EOHHS seeks to implement such changes in the Agreement, EOHHS shall provide written notice to the INCONTINENCE PRODUCTS SUPPLIER and shall initiate negotiations with the INCONTINENCE PRODUCTS SUPPLIER.

Other amendments or alterations to this Agreement may be made by an amendment in writing signed by both parties.

Contract Documents This Agreement consists of the following documents, in the following order of precedence:

1. Commonwealth Terms and Conditions;

If there are conflicting provisions among the documents that make up the Agreement, the order of precedence as listed above shall apply. The provisions of the Commonwealth Terms and Conditions, the Commonwealth Standard Contract Form and the Statement of Work are mandatory and non-negotiable.

Entire Agreement This Agreement contains the entire agreement and understanding of the parties. This Agreement (including Attachments) may not be amended or modified except in accordance with Section 6.7 of this Agreement.

Governing Law The laws of the Commonwealth of Massachusetts shall govern this Agreement. In the event of a lawsuit involving this Agreement, venue shall be proper only in Suffolk County, Massachusetts.

Compliance with Law In connection with its respective obligations under this Agreement, each party shall comply with all applicable federal, state and local laws and regulations, including without limitation any disclosure or consent requirements.

Authority EOHHS and [INCONTINENCE PRODUCTS SUPPLIER] each represent and warrant to the other that the person signing below has all requisite legal power and authority to execute this Agreement on behalf of each party and each party shall thereby be bound.

Authorizations This Agreement is subject to all necessary federal and state approvals, which may include, where applicable, the Centers for Medicare and Medicaid Services (CMS) and the Massachusetts Office of the Comptroller.

Statutory and Regulatory References The explicit inclusion of some statutory and regulatory duties in this Agreement shall not exclude other statutory or regulatory duties.

Titles and Subheadings Titles and subheadings used in this Agreement are provided solely for the reader’s convenience and shall not be used to interpret any provision of this Agreement.

Independent Contractors The Contractor, its employees, and any other of its agents shall act in an independent capacity in the performance of the Agreement, and not as officers or employees of EOHHS or the Commonwealth of Massachusetts.

Indemnification The Contractor shall comply and shall cause its personnel (including Material Subcontractor(s)’s or subcontractors’ personnel) to comply with the indemnification provisions described in Section 11 of the Commonwealth Terms and Conditions.

Prohibited Activities and Conflict of Interest The Contractor represents that no person who is an owner, employee, consultant, or subcontractor of the Contractor, has been debarred by any federal agency, excluded from participation in a program under Titles XVIII, XIX, XX, or XXI of the Social Security Act, or subjected to a civil money penalty under the Social Security Act

The Contractor shall not have any interest that conflicts with the performance of services under the Agreement, or that may be offensive or anti-competitive, as determined by EOHHS, for the duration of the Agreement, it being understood that the sale of similar goods or services to other customers does not of itself constitute such a conflict.

Contract Remedies for Poor Performance This Agreement contains terms and conditions specifying remedies that EOHHS may seek for poor performance on the part of the Contractor. These remedies include, but are not limited to, corrective action plans, and termination of the Agreement. Unless otherwise specified, these remedies shall be non-exclusive of any other remedies EOHHS may have at law or equity.

Corrective Action Plan At any point during this Agreement, if EOHHS identifies, in its sole judgment, any deficiency in the Contractor’s performance under this Agreement, EOHHS may develop or require the contractor to develop a corrective action plan to correct such deficiency. Contractor shall submit any corrective action plan as required by EOHHS within three business days of EOHHS’s request. Contractor shall implement such corrective action plan only as approved or modified by EOHHS. EOHHS may require Contractor to subcontract with a Material Subcontractor deemed satisfactory to EOHHS, alter the manner in which Contractor performs any Contract responsibilities, and implement any other action that EOHHS reasonably deems necessary.

Public Records All response and related documents submitted in response to the RFR resulting in this Agreement become public records and are subject to the Massachusetts Public Records Law, M.G.L. c. 4, s. 7, ss. 26, and M.G.L. c. 66, s. 10. Any statements in submitted responses that are inconsistent with these statutes, the Commonwealth’s Terms and Conditions and Standard Contract Form will be disregarded.

The entire contents of the Contractor’s response shall be binding on the Contractor. The specifications and contents of the Contractor’s response, including any supplemental documents, may, at EOHHS discretion, be incorporated into this Agreement.

ATTACHMENT A

COVERED PRODUCTS:

The Agreement shall apply to each HCPCS code for Covered Products listed in the Table below.

Table 1: HCPCS Codes for Covered Products

ATTACHMENT B

LIST OF DME PROVIDERS as of [DATE]:

(To be provided)