Draft Statement of Work - Legal Services for Guardianship VASNHCS.pdf

STATEMENT OF WORK (SOW)

Legal Services for Guardianship

VA Sierra Nevada Health Care System

1. BACKGROUND

VA Sierra Nevada Health Care System (VASNHCS) is seeking legal representation for the filing and disposition of guardianship cases for Veterans who are deemed incapacitated, who reside in Nevada and Northern California counties within the agency’s catchment area, who are admitted to the VA hospital and/or Community Living Center (CLC) and who have no family, friends or significant who are willing or able to act on the Veteran’s behalf.

VASNHCS has encountered barriers to discharge for Veterans who lack decision-making capacity and require a legally appointed guardian to facilitate discharge. Historically, most Nevada and California County Public Guardian Offices accepted referrals for guardianship, and they would use their county attorney to petition the court directly for guardianship appointment. Presently, most Nevada and California Public County Guardian’s offices now require court appointment of a public guardian prior to accessing their services. The resulting impact is that an interested party must first petition the court for guardianship in order to access the public guardian offices. For Veterans who are inpatient at VASNHCS, who reside within VASNHCS catchment area and have no family/friends to petition on their behalf, the burden of petitioning the court to access the Public Guardians Office falls to the VA Medical Center.

The goal is to have the Court appoint the County Public Guardian Office as legal guardian for the incapacitated Veteran to ensure there is legal representation to speak on their behalf, to take the necessary steps to apply for the available financial resources and to complete applications for admission into an appropriate care setting when the Veteran’s care needs change. This represents one of the VA’s most significant efforts to provide care in the least restrictive environment of care. Our goal is to ensure that Veterans can receive care in an appropriate setting that meets their care needs. The Department of Veterans Affairs Office of General Counsel and the Health Law Group have not given permission for the local Office of General Counsel to provide these services, which is why outside legal counsel is being sought.

Without a guardianship legal contract, VASNHCS is unable to pursue guardianship and these vulnerable veterans remain institutionalized on our acute care and CLC units. The cost is excessive. The veterans are at increased risk for adverse events, hospital acquired conditions and medical errors. Prolonged stay on the acute care floors not only disrupts patient flow and discharge disposition but it also results in increased use of medical resources and higher costs for the facility.

2. OBJECTIVE

VASNHCS is committed to providing Veterans with high-quality health care in the most appropriate and least restrictive care setting including those who lack capacity to speak on their own behalf or make important decisions. This goal is supported by VA Central Office (VACO) and the White House. VA Sierra Nevada Health Care System (VASNHCS) is seeking a Contractor to assist with the provision of petitions for guardianship.

The Contractor shall provide to the Department of Veterans Affairs (VA) legal representation for the filing and disposition of guardianship cases when a Veteran lacks capacity to speak on their own behalf

VA Sierra Nevada Health Care System and there is no family either willing or able to act on the Veteran’s behalf. The ordering period for these services shall be one year from the date of award, not to exceed $40,000 over the one-year period. Term will be on or about the below:

Year 1: 9/01/2024-8/31/2025

3. SCOPE OF WORK

The VASNHCS is seeking a contract for legal representation for filing and disposition of guardianship cases for Veterans who are deemed incapacitated, who reside within VASNHCS catchment area, who are admitted to the VA hospital and/or Community Living Center (CLC) and who have no family, friends or significant who are willing or able to act on the Veteran’s behalf.

3.1 The Contractor shall provide all personnel, equipment, supplies, facilities, transportation, tools, materials, supervision, and other items and non-personal services necessary to perform legal services to assist with guardianship requests as defined in this Scope of Work (SOW) except for those items specified as government furnished property and services. The work to be performed under this contract will be performed at the office of the Contractor or the appropriate court of jurisdiction.

3.2 The Contractor shall provide legal services necessary to represent the VASNHCS during the guardianship process to successfully obtain guardianship. Legal services, to include, but not limited to initial review or consultation of the case to determine feasibility of guardianship, court appearances, telephone calls and/or conferences to and from client; office conferences, legal research, depositions, review of file materials and documents sent or received, travel time; waiting time, preparation for trial, hearings and court conference; drafting of pleading, correspondence and office memoranda.

3.3 The Contractor shall file petitions with the County Court on behalf of VASNHCS for Veterans who have been determined by a medical provider to lack capacity to make decisions for themselves regarding their care. The VA provider will complete the Physician Certificates attesting to the above.

3.4 Pertinent patient information will be transmitted to the Contractor via fax or encrypted email by the Social Work Executive or its designee. Contractor shall have established processes to ensure that the information received will be secured and available only to the staff that are involved in the case and no one else. The Contractor will not have access to the VA network. Contractor shall respond to the Social Work Executive or its designee within 24 business hours of receiving the information to confirm receipt.

3.5 The Contractor shall submit all notifications to interested parties as part of the petition process.

3.6 The Contractor shall represent the VASNHCS in any court hearings related to the petition for guardianship. The Contractor shall work to represent the VASNHCS during the appeal process and to present the case in the best interest of the client.

3.7 The Contractor shall prepare any VASNHCS staff that are required to testify at the guardianship hearings.

3.8 The Contractor shall make available to the VA all copies of records and filings with the Court.

3.9 The VA program staff will collaborate with the Contractor to provide required medical records and expert testimony.

VA Sierra Nevada Health Care System

3.10 The Contractor shall comply with the VA Patient’s Bill of Rights as set forth in Section 17.33, Title 38, Code of Federal Regulations.

3.11 The Contractor will notify the Contracting Officer (CO) or the Contracting Officer’s Representative (COR) when the fees and/or hours have reached seventy-five percent (75%) of the contracted amount.

3.12 Invoices shall include who the services are for, initials of who completed the service, date of service, site of activity, activity, quantity of time spent, cost per time unit and extended price. Written authorization from the Social Worker Executive or designee is required for attorney hours greater than 5 hours/case, paralegal hours greater than 6 hours/case and other fees greater than $400/case.

3.13 It is expected that ninety percent (90%) of the petitions for guardianship will be successful.

3.14 Federal Holidays: Contractor will not perform services for the VA on these holidays:

New Year’s Day Martin Luther King Jr. Day Presidents Day Memorial Day Independence Day Juneteenth Columbus Day Veterans Day Thanksgiving Day Christmas Day

3.15 Hours of Operation: The contractor is responsible for conducting business, between the hours of 8:00am – 5:00pm Monday thru Friday except Federal holidays or when the Government facility is closed due to local or national emergencies, administrative closings, or similar Government directed facility closings.

3.16 Place of Performance: The work to be performed under this contract will be performed at the office of the contractor or the appropriate court of jurisdiction.

3.17 Type of Contract: The government will award a contract for legal services related to filing for guardianship.

4. Qualifications

4.1 The Contractor shall be an active member of the Nevada and California Bar Association in good standing.

5. Confidentiality

5.1 The VA will provide the Contractor pertinent patient medical information, within the existing privacy rules and regulations, for the purpose of obtaining guardianship.

VA Sierra Nevada Health Care System

5.2 The Contractor shall ensure the confidentiality of all patient information. Patient information is Protected Health Information (PHI). The term “Protected Health Information” or the abbreviation “PHI” shall include the term “Electronic Protected Health Information” and the abbreviation “EPHI”.

5.3 The contract shall be subject to the regulations issued by the Department of Health and Human Services, as mandated by the Health Insurance Portability and Accountability Act (HIPAA) of 1996, Business Associates Agreement (BAA) in accordance with IL 049-03-7 and the Privacy Act of 1974.

Federal Acquisition Regulations 52.224-1 Privacy Act Notification and 52.224-2 Privacy Act are provided in full text in the FAR. The Contractor shall not release any medical information that is not needed for the legal case. Reference VHA Directive 1605.01 Privacy and Release of Information dated August 31, 2016 (available upon request).

5.4 The Contractor will complete the Contractor Security Controls Assessment (CSCA) within 30 days of the award of the contract and annually thereafter.

6. Records

6.1 Citations to pertinent laws, codes and regulations such as 44 U.S.C chapters 21, 29, 31 and 33;

Freedom of Information Act (5 U.S.C. 552); Privacy Act (5 U.S.C. 552a); 36 CFR Part 1222 and Part 1228.

6.2 Contractor shall treat all deliverables under the contract as the property of the U.S. Government for which the Government Agency shall have unlimited rights to use, dispose of, or disclose such data contained therein as it determines to be in the public interest.

6.3 Contractor shall not create or maintain any records that are not specifically tied to or authorized by the contract using Government IT equipment and/or Government records.

6.4 Contractor shall not retain, use, sell, or disseminate copies of any deliverable that contains information covered by the Privacy Act of 1974 or that which is generally protected by the Freedom of Information Act.

6.5 Contractor shall not create or maintain any records containing any Government Agency records that are not specifically tied to or authorized by the contract.

6.6 The Government Agency owns the rights to all data/records produced as part of this contract.

6.7 The Government Agency owns the rights to all electronic information (electronic data, electronic information systems, electronic databases, etc.) and all supporting documentation created as part of this contract. Contractor must deliver sufficient technical documentation with all data deliverables to permit the agency to use the data.

6.8 Contractor agrees to comply with Federal and Agency records management policies, including those policies associated with the safeguarding of records covered by the Privacy Act of 1974. These policies include the preservation of all records created or received regardless of format [paper, electronic, etc.] or mode of transmission [e-mail, fax, etc.] or state of completion [draft, final, etc.].

6.9 No disposition of documents will be allowed without the prior written consent of the Contracting

Officer. The Agency and its contractors are responsible for preventing the alienation or unauthorized

VA Sierra Nevada Health Care System destruction of records, including all forms of mutilation. Willful and unlawful destruction, damage or alienation of Federal records is subject to the fines and penalties imposed by 18 U.S.C. 2701. Records may not be removed from the legal custody of the Agency or destroyed without regard to the provisions of the agency records schedules.

6.10 The Contractor shall make available to the VASNHCS all copies of records and filings with the

Court.

6.11 Contractor is required to obtain the Contracting Officer's approval prior to engaging in any contractual relationship (sub-contractor) in support of this contract requiring the disclosure of information, documentary material and/or records generated under, or relating to, this contract. The Contractor (and any sub-contractor) is required to abide by Government and Agency guidance for protecting sensitive and proprietary information.

6.12 Contractor personnel who obtain access to hardware or media which may manipulate or store drug or alcohol abuse data, sickle cell anemia treatment records, records or tests or treatment for or infection with HIV/AIDS, medical quality assurance records, or any other sensitive information protected under 38 U.S.C. Section 7332, as defined by the Department of Veterans Affairs shall not have access to the records unless absolutely necessary to perform their contractual duties.

6.13 Any individual who has access to these data shall disclose them to no one, including other employees of the Contractor not involved in the performance of the particular contractual duty for which access was obtained. Violation of these statutory provisions, as stated in department regulations by which the Contractor’s employees must agree to abide may involve imposition of criminal penalties.

6.14 The VA will afford Veterans all Individual Privacy Rights Described in VHA 1605.04 (e.g. Right of Access, Right to Request Amendment, Right to Request Restriction, Right to Request an Accounting of Disclosures, etc.).

6.15 Contractor shall comply with all applicable records management laws and regulations, as well as

National Archives and Records Administration (NARA) records policies, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31, 33), NARA regulations at 36 CFR Chapter XII Subchapter B, and those policies associated with the safeguarding of records covered by the Privacy Act of 1974 (5 U.S.C. 552a). These policies include the preservation of all records, regardless of form or characteristics, mode of transmission, or state of completion.

6.16 In accordance with 36 CFR 1222.32, all data created for Government use and delivered to, or falling under the legal control of, the Government are Federal records subject to the provisions of 44 U.S.C. chapters 21, 29, 31, and 33, the Freedom of Information Act (FOIA) (5 U.S.C. 552), as amended, and the Privacy Act of 1974 (5 U.S.C. 552a), as amended and must be managed and scheduled for disposition only as permitted by statute or regulation.

6.17 In accordance with 36 CFR 1222.32, Contractor shall maintain all records created for

Government use or created in the course of performing the contract and/or delivered to, or under the legal control of the Government and must be managed in accordance with Federal law. Electronic records and associated metadata must be accompanied by sufficient technical documentation to permit understanding and use of the records and data.

VA Sierra Nevada Health Care System

6.18 VASNHCS and its contractors are responsible for preventing the alienation or unauthorized destruction of records, including all forms of mutilation. Records may not be removed from the legal custody of VASNHCS or destroyed except for in accordance with the provisions of the agency records schedules and with the written concurrence of the Head of the Contracting Activity. Willful and unlawful destruction, damage or alienation of Federal records is subject to the fines and penalties imposed by 18 U.S.C. 2701. In the event of any unlawful or accidental removal, defacing, alteration, or destruction of records, Contractor must report to VASNHCS. The agency must report promptly to NARA in accordance with 36 CFR 1230.

6.19 The Contractor shall immediately notify the appropriate Contracting Officer upon discovery of any inadvertent or unauthorized disclosures of information, data, documentary materials, records, or equipment. Disclosure of non-public information is limited to authorized personnel with a need-to-know as described in the [contract vehicle]. The Contractor shall ensure that the appropriate personnel, administrative, technical, and physical safeguards are established to ensure the security and confidentiality of this information, data, documentary material, records and/or equipment is properly protected. The Contractor shall not remove material from Government facilities or systems, or facilities or systems operated or maintained on the Government’s behalf, without the express written permission of the Head of the Contracting Activity. When information, data, documentary material, records and/or equipment is no longer required, it shall be returned to VASNHCS control, or the Contractor must hold it until otherwise directed. Items returned to the Government shall be hand carried, mailed, emailed, or securely electronically transmitted to the Contracting Officer or address prescribed in the [contract vehicle]. Destruction of records is EXPRESSLY PROHIBITED unless in accordance with Paragraph (4).

6.20 The Contractor is required to obtain the Contracting Officer's approval prior to engaging in any contractual relationship (sub-contractor) in support of this contract requiring the disclosure of information, documentary material and/or records generated under, or relating to, contracts. The Contractor (and any sub-contractor) is required to abide by Government and VASNHCS guidance for protecting sensitive, proprietary information, classified, and controlled unclassified information.

6.21 The Contractor shall only use Government IT equipment for purposes specifically tied to or authorized by the contract and in accordance with VASNHCS policy.

6.22 The Contractor shall not create or maintain any records containing any non-public VASNHCS information that are not specifically tied to or authorized by the contract.

6.23 The Contractor shall not retain, use, sell, or disseminate copies of any deliverable that contains information covered by the Privacy Act of 1974 or that which is generally protected from public disclosure by an exemption to the Freedom of Information Act.

6.24 The VASNHCS owns the rights to all data and records produced as part of this contract. All deliverables under the contract are the property of the U.S. Government for which VASNHCS shall have unlimited rights to use, dispose of, or disclose such data contained therein as it determines to be in the public interest. Any Contractor rights in the data or deliverables must be identified as required by FAR 52.227-11 through FAR 52.227-20.

6.25 Training. All Contractor employees assigned to this contract who create, work with, or otherwise handle records are required to take VHA-provided records management training. The Contractor is responsible for confirming training has been completed according to agency policies, including initial training and any annual or refresher training. [Note: To the extent an agency requires contractors to complete records management training, the agency must provide the training to the contractor.]

VA Sierra Nevada Health Care System

7. Inherently Government Functions Statement The services to be procured do not include inherently governmental functions pursuant to the definition of an inherently governmental function in paragraph 3 of Office of Federal Procurement Policy (OFPP) Policy Letter 11-01, do not appear on the list of inherently governmental functions in Appendix A of the Policy Letter, and do not otherwise qualify as an inherently governmental function taking into consideration the tests for identifying inherently governmental functions in paragraph 5-1 of the Policy Letter. The function to be contracted for is not closely associated with an inherently governmental one and the required services are not critical as defined in paragraph 3 of the Policy Letter.

8. Government Furnished Items and Services The VASNHCS will provide only the information necessary to complete the court case appropriately. No equipment will be provided.

9. Security Accreditation Package (C&A) The C&A requirements do not apply, and a Security Accreditation Package is not required.

END OF SOW