Attachment 5 - Model Contract for DME RFR.docx

ATTACHMENT 5

MODEL CONTRACT

FOR

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 August 25, 2022, EOHHS posted on the Commonwealth of Massachusetts procurement website (COMMBUYS, www.commbuys.com), a Notice of Upcoming Procurement for a Preferred Supplier for the Provision of DME Incontinence Products (Document Number: 23EHSDMEINCONTINENCEPRODUCTRFR);

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 [Alternative One of this Agreement and subject to the minimum product specifications for Standard Products for Certain Briefs and Diapers and Premium Products for Certain Briefs and Diapers; and Standard and Universal Performance Specifications for protective underwear/pull-ons set forth in Attachment A Alternative One] or [Alternative Two of this Agreement and subject to the to the minimum product specifications for Premium Products for Certain Briefs and Diapers; and Standard and Universal Performance Specifications for protective underwear/pull-ons set forth in Attachment A Alternative Two]. Attachment A 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:

is used primarily and customarily to serve a medical purpose;

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

can withstand repeated use over an extended period; and is 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 (ICF/IID), or any setting in which payment is or could be made under Medicaid inpatient services that includes room and board, except as allowed pursuant to 130 CMR 409.415 and 409.419(C).

Effective Date – The date on which the Contract is fully executed as set forth in Section 5 or on the Commonwealth’s Standard Contract Form, whichever is later.

Executive Office of Health and Human Services (EOHHS) – The single state agency for the administration of MassHealth (Medicaid), 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.

Existing Contractor – The contractor currently under contract as the Preferred Supplier.

Implementation Period – 8 weeks from the contract Effective Date or until the latest date of the termination of the contract with the Existing Contractor, whichever is later.

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 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). For purposes of this Agreement, “MassHealth Member” does not include MassHealth members enrolled in MassHealth Accountable Care Partnership Plans (ACPPs), Managed Care Organizations (MCOs), Senior Care Organizations (SCOs), or One Care Plans (collectively, for the purposes of this Agreement, managed care entities or MCEs).

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;

1. generally not useful in the absence of illness or injury;

1. consumable or disposable;

1. cannot withstand repeated use by more than one individual; and

1. appropriate for use in any setting in which normal life activities take place, other than a hospital, nursing facility, ICF/IID, 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.

Transition Plan – A detailed written plan for the Implementation Period prepared by the Contractor in accordance with Section 4.1 which identifies all activities, schedules, data transfers, personnel and human resource issues, physical site issues and any and all issues associated with assuming full responsibility for all duties associated with this Agreement from the Existing Contractor.

Turnover Plan – A plan prepared by the Contractor in accordance with Section 4.2 explaining the Contractor’s duties, processes, procedures and protocols regarding its responsibilities under this Contract, and an approach for how such work would transition to EOHHS or its agent upon the termination, expiration or non-renew of this Contract.

EOHHS OBLIGATIONS

Section 1.

Section 2.

Prior Authorizations 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 or such other period agreed to by the Parties, 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 supplier for any classes of HCPCS codes other than those listed in Attachment A.

Obligations During Implementation Period During the Implementation Period, the Parties shall collaborate on:

1. Transition Plan for Contractor assuming responsibility from the Existing Contractor;

1. DME Provider and MassHealth Member education;

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

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

[INCONTINENCE PRODUCTS SUPPLIER] OBLIGATIONS

Section 3.

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 placed. The Preferred Supplier shall have inventory or arrangements adequate to ship all orders within 24 hours or 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 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:

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.

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 with 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.

Information and updates regarding any discontinued or 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 location or via an online system 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 an update to any information provided regarding the Preferred Supplier’s financial condition as part of the Preferred Supplier’s Response to RFR Section III.E.5. The Preferred Supplier must demonstrate to the satisfaction of EOHHS that its organization (and the Preferred Supplier’s parent organization, if any) and any Material Subcontractor(s) continue to be in sound financial condition. The Preferred Supplier must also demonstrate to the satisfaction of EOHHS that any significant financial problems are being addressed with appropriate corrective measures.

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 C 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) different 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.

[(Alternative One) Minimum Product Specifications

1. Covered Products Not Subject to Minimum Product Specifications The NAFC standards do not apply to the following Covered Products: T4529, T4530, T4531, T4532, T4535-UD, T4535, T4536, T4537, T4539, T4540, T4541, T4542, T4544.

1. Minimum Product Specifications for Certain Briefs/Diapers 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 for Standard Performance Products (briefs/diapers) listed in Section 3.10.B or for Premium Performance Products (briefs/diapers) listed in Section 3.10.C ; and for Standard Performance Products (protective underwear/pull-ons) listed in 3.10.D of this Agreement. EOHHS reserves the right to update its standards or adopt alternative quality standards.

Minimum Standard Performance Product Specifications for Certain Briefs/Diapers The Preferred Supplier shall ensure that Covered Products for HCPCS codes listed in Attachment A, Alternative One, Table 1 comply with the minimum NAFC product specifications for Standard Performance Products listed below:

No plastic (non-breathable) backed products Rewet rate of <2.0 grams Rate of Acquisition (ROA) of <60 seconds Retention capacity of >250 grams Presence of breathable zones with a minimum value of >100 cubic feet per minute (cfm) Presence of a closure system which allows for multiple fastening and unfastening occurrences.

Minimum Premium Performance Product Specifications for Certain Briefs/Diapers The Preferred Supplier shall ensure that Covered Products for HCPCS codes listed in Attachment A, Alternative One, Table 2 comply with the minimum NAFC product specifications for Premium Performance Products listed below:

0. No plastic (non-breathable) backed products Rewet rate of <1.0 grams Rate of Acquisition (ROA) of <50 seconds Retention capacity of >400 grams Presence of breathable zones with a minimum value of >100 cubic feet per minute (cfm) Presence of a closure system which allows for multiple fastening and unfastening occurrences.

Minimum Standard Performance Specifications for Protective Underwear/Pull-ons The Preferred Supplier shall ensure that Covered Products for HCPCS codes listed in Attachment A, Alternative One, Table 3 are listed below:

0. Rewet rate of <1.0 grams Rate of Acquisition (ROA) <45 seconds Retention capacity >250 grams Presence of breathable (permeability) zones with a minimum value of >100 cubic feet per minute (cfm).

Universal Requirements for Underwear and Pull-ons:

0. Designed with a continuous elasticized waistband and side panels Designed with multi-elastic leg gathers with >100% elastic tension Backing is waterproof]

1. [(Alternative Two) Minimum Product Specifications

1. Covered Products Not Subject to Minimum Product Specifications The NAFC standards do not apply to the following Covered Products: T4529, T4530, T4531, T4532, T4535-UD, T4535, T4536, T4537, T4539, T4540, T4541, T4542, T4544.

1. Minimum Product Specifications for Certain Briefs/Diapers 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 Premium Performance Products (briefs/diapers) listed in Section 3.10.B or for Standard Performance Products (protective underwear/pull-on) listed in 3.10.C of this Agreement. EOHHS reserves the right to update its standards or adopt alternative quality standards.

Minimum Premium Performance Product Specifications for Certain Briefs/Diapers The Preferred Supplier shall ensure that Covered Products for HCPCS codes listed in Attachment A, Alternative Two, Table 2 comply with the minimum NAFC product specifications for Premium Performance Products listed below:

0. No plastic (non-breathable) backed products Rewet rate of <1.0 grams Rate of Acquisition (ROA) of <50 seconds Retention capacity of >400 grams Presence of breathable zones with a minimum value of >100 cubic feet per minute (cfm) Presence of a closure system which allows for multiple fastening and unfastening occurrences.

D. Minimum Standard Performance Specifications for Protective Underwear/Pull-ons The Preferred Supplier shall ensure that Covered Products for HCPCS codes listed in Attachment A, Alternative Two, Table 3 are listed below:

0. Rewet rate of <1.0 grams Rate of Acquisition (ROA) <45 seconds Retention capacity >250 grams Presence of breathable (permeability) zones with a minimum value of >100 cubic feet per minute (cfm).

Universal Requirements for Underwear and Pull-ons:

0. Designed with a continuous elasticized waistband and side panels Designed with multi-elastic leg gathers with >100% elastic tension Backing is waterproof]

3. Independent Testing The 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 three subsections.

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 with DME Providers 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) 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 6.20 or 6.21 of this Agreement.

Obligations During Implementation Period During the Implementation Period, the Parties shall collaborate on:

1. Development and implementation of a Transition Plan from the Existing Contractor to the Contractor;

1. DME Provider and MassHealth education;

Determining additional communication strategies to promote participation by DME Providers; and EOHHS implementation of any necessary regulatory amendments and/or issuance of subregulatory materials.

CONTRACT IMPLEMENTATION

Section 4.

Transition Plan and Implementation Period (total: 8 weeks)

1. Transition Plan Within one (1) week of the effective date of this Agreement, Preferred Supplier must provide a detailed, written Transition Plan prepared by the Contractor in accordance with Section 4.1 which identifies all activities, schedules, data transfers and all other issues associated with assuming full responsibility for all duties associated with this Agreement from the Existing Contractor. The Transition Plan shall reflect that the Contractor shall assume all responsibilities from the Existing Vendor by the end of the Transition Period and that such transition shall occur on a weekend.

Implementation Period Following delivery of the Transition Plan and 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 3.13;

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

Assign and identify Preferred Supplier staffing, including:

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

Preferred Supplier Contract Manager [INSERT NAME AND CONTACT INFORMATION] Project staff team, including, but not limited to:

1. Customer Service Lead;

1. Quality Assurance Lead;

1. Network Administration Lead; and

1. Compliance Lead.

Furnish EOHHS with the following implementation deliverables:

1. Transition Plan, including timelines and dependencies, tasks and deliverables, within one (1) week of contract execution;

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

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

1. Ordering methodology

1. Samples

1. Training materials 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.

Attachment B of this Agreement lists the Preferred Supplier’s key personnel. A summary of their responsibilities is set forth in the Preferred Supplier’s response to RFR Section III.F, and they are certified in RFR Attachment 6, Exhibit 4.

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

Turnover at Expiration, Termination, or Non-Renewal of Agreement

1. The Preferred Supplier shall develop and submit for EOHHS review and approval, a Turnover Plan within 90 days of the Effective Date of this Agreement.

The Preferred Supplier shall review such Turnover Plan at least annually and submit any necessary updates to EOHHS for approval.

Upon the expiration, termination, or non-renewal of this Agreement, the Preferred Supplier shall assist with the transition of this Agreement to EOHHS or EOHHS’s future preferred supplier, including with the development of a Turnover Plan.

The Preferred Supplier shall continue to fully perform all aspects of the Agreement until all Agreement obligations have been turned over to EOHHS or EOHHS’s future preferred supplier.

The Preferred Supplier shall work cooperatively with EOHHS to effectively implement the Turnover Plan.

TERM AND TERMINATION

Section 5.

Contract Officers

1. EOHHS designates Jacqueline Eagle, Senior Manager Durable Medical Equipment and Supplies (DME) Program, or their designee, as Contract Officer, who shall be authorized and empowered to represent EOHHS with respect to all matters relating to this Contract. Such designation may be changed during the period of this Contract only by written notice.

The Contractor designates [Name], [Title], as Contract Officer, who shall be authorized and empowered to represent the Contractor with respect to all matters relating to the implementation of this Contract. Such designation may be changed during the period of this Contract only by written notice.

Effective Date; Termination

1. Effective Date and Term of Agreement This Agreement shall be effective [DATE] [footnoteRef:1], and shall continue in force through [DATE (end of initial 3-year term)], unless it is terminated sooner pursuant to Section 5.2.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. [1: Dates will be inserted by EOHHS at contract execution, and will provide for a 3-year initial term. Not for use by Bidders. ]

Termination

1. 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 and Counterparts 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.

ADDITIONAL TERMS AND CONDITIONS

Section 6.

Subcontractors In addition to the provisions of Section 9 of the Commonwealth Terms and Conditions, all subcontracts necessary to the Contractor’s performance under this Agreement, must contain all relevant provisions of the Commonwealth’s Terms and Conditions and all terms of such subcontracts must be consistent with all terms and conditions of this Agreement. The Contractor is fully responsible for any subcontractor’s performance and for meeting all terms and requirements of this Agreement. The Contractor will not be relieved of any legal obligations under this Agreement, regardless of whether the Contractor subcontracts for performance of any Contract responsibility.

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. Record retention shall also be in accordance with Section 7 of the Commonwealth Terms and Conditions.

EOHHS, the Governor, the Secretary of Administration and Finance, the Comptroller, the State Auditor, the Attorney General, or any of their duly authorized representatives or designees, or any other state or federal oversight agency shall the have the right at reasonable times and upon reasonable notice to:

1. Examine and copy books, records, and other compilations of data pertaining to the performance of this Contract;

Evaluate through inspection or other means the quality, appropriateness, and timeliness of the Contractor’s performance under the Contract; and Inspect and audit the financial records of the Contractor and its subcontractors related to the performance of this Contract.

Confidentiality [INCONTINENCE PRODUCTS SUPPLIER] shall comply with all applicable, and in effect upon execution or as may be effective during the course of this Agreement, state and federal laws, regulations, policies and procedures relating to confidentiality, privacy, security and/or management of confidential information or other Commonwealth data (if applicable) 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. c. 66A), personal information (as such term is used in M.G.L. c. 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 3.13 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 otherwise specified herein, all notices, reports, requests, consents, claims, demands, waivers and other communications provided under this Agreement (each, a “Notice”) shall be in writing and shall be deemed to have been given to a party: (i) when delivered by hand; (ii) on the date sent by facsimile or by e-mail if sent during normal business hours of the party, and on the next business day if sent after normal business hours of the party; or (iii) on the third day after the date deposited in the U.S. Mail, first class, postage pre-paid, provided, that, in each case, the Notice is delivered or addressed to the party’s contact person(s) at the address(es) identified below (or to such other contact person(s) at such other address(es) as the recipient may from time to time specify in a notice given in accordance with this Section 6.4).

To [INCONTINENCE PRODUCTS SUPPLIER]:

[INCONTINENCE PRODUCTS SUPPLIER]

[ADDRESS]

Attn: [INSERT NAME AND TITLE]

To EOHHS:

Massachusetts Executive Office of Health and Human Services One Ashburton Place, 5th floor, Boston, MA 02108 Attn: Jacqueline Eagle, Senior Manager DME Program

Force Majeure Consistent with Section 4 of the Commonwealth’s Terms and Conditions, 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, unforeseen public emergency, 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.

Waiver 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, as defined in Section 1. 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 and Order of Precedence This Agreement consists of the following documents, in the following order of precedence:

1. The Commonwealth Terms and Conditions;

1. The Commonwealth Standard Contract Form;

1. The Agreement including any amendments hereto, all exhibits and attachments;

1. The RFR, including all exhibits and attachments; and

1. The [INCONTINENCE PRODUCT SUPPLIER’s] response to the RFR.

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 with respect to the subject matter hereof including all Attachments and Appendices hereto, and supersedes all prior agreements, representations, negotiations, and undertakings not set forth or incorporated herein. This Agreement (including Attachments) may not be amended or modified except in accordance with Section 6.8 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. If the contract value is in excess of $150,000, the Contractor, if it is a non-Federal awardee, shall comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).

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), the Massachusetts Office of the Comptroller and, where applicable, the Massachusetts Office of the Attorney General.

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 Unless otherwise exempted by law, the Contractor shall indemnify and hold harmless the State, including EOHHS, its agents, officers and employees against any claims, liabilities and costs for any personal injury or property damages, patents, copyright infringement or other damages that the State may sustain which arise out of or in connection with the Contractor’s performance of a Contract, including but not limited to the negligence, reckless or intentional conduct of the Contractor, its agents, officers, employees or subcontractors. The Contractor shall at no time be considered an agent or representative of EOHHS or the State. After prompt notification of a claim by the State, the Contractor shall have an opportunity to participate in the defense of such claim and any negotiated settlement or judgment. The State shall not be liable for any costs incurred by the Contractor arising under this paragraph. Any indemnification of the Contractor shall be subject to appropriation and applicable law. This Section 6.18 is a restatement of 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.

If EOHHS determines that the Contractor or any Subcontractor has a conflicting or otherwise anti-competitive interest, EOHHS reserves the right to consider any proposal of the Contractor of any measures that would eliminate or mitigate such interest to EOHHS’ satisfaction.

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 and submit to EOHHS 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. The Contractor’s failure to implement any corrective action plan may, in the sole discretion of EOHHS, be considered breach of Contract and may subject the Contractor to termination of the Contract by EOHHS.

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. All responses become the property of the Commonwealth of Massachusetts.

No Third-Party Enforcement This Contract shall be enforceable only by the Parties, or officers or agencies of the Commonwealth authorized to act on behalf of EOHHS or its successors. Nothing in this Contract shall be deemed to confer benefits or rights to any other Parties.

Effect of Invalidity of Clauses If any clause or provision of this Contract is in conflict with any state or federal law or regulation, that clause or provision shall be null, and void and any such invalidity shall not affect the validity of the remainder of this Contract.

Anti-Boycott Covenant During the time this Contract is in effect, neither the Contractor nor any affiliated company, as hereafter defined, shall participate in or cooperate with an international boycott, as defined in Section 999(b)(3) and (4) of the Internal Revenue Code of 1954, as amended, or engage in conduct declared to be unlawful by M.G.L. c. 151E, §2. Without limiting such other rights as it may have, EOHHS shall be entitled to rescind this Contract in the event of noncompliance with this section. As used herein, an affiliated company shall be any business entity directly or indirectly owning at least 51 percent of the ownership interests of the Contractor.

Insurance for Contractor’s Employees The Contractor shall agree to maintain at the Contractor’s expense all insurance required by law for its employees, including worker’s compensation and unemployment compensation. The Contractor shall provide EOHHS with evidence of proper Workers’ Compensation Insurance and General Liability Insurance by June 30 of each year.

ATTACHMENT A [Alternative One]

TOTAL UNIT PRICES FOR 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

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Standard:

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