ESBD_367425_1720549887492_5.3_Vendor Supplemental & Programmatic Conditions.docx

5.3 TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

VENDOR SUPPLEMENTAL, SPECIAL & PROGRAMMATIC CONDITIONS FOR SIL

SECTION I

SUPPLEMENTAL CONDITIONS

There are no Supplemental Conditions that modify the DFPS Vendor Uniform Terms and Conditions.

SECTION II

SPECIAL CONDITIONS

In addition to the DFPS Uniform Terms and Conditions, the Contractor agrees to comply with the following DFPS Vendor Special Conditions.

A. PAYMENTS UNDER STATE PLANS APPROVED UNDER TITLE IV-E AND TANF.

As applicable, Contractors must seek payment or adjustment to payments in accordance with the time limit specified in 45 Code of Federal Regulations (CFR) 95.1 that provides a two-year (eight fiscal year quarters) time limit for a State to claim Federal financial participation in expenditures under State plans approved under Title IV-E and Temporary Assistance for Needy Families (TANF).

Any invoice or amended invoice that is submitted to DFPS later than seven quarters after the end of the quarter of the expense, will not be processed unless DFPS determines that submission for payment of the bill to the federal government can be executed within the time limits provided in the CFR.

B. BACKGROUND HISTORY CHECKS - DISALLOWANCE OF TITLE IV-E FUNDS.

If this Contract is funded in part or whole by Title IV-E Funds, then during a federal audit, if there is a finding that Contractor has not performed required checks within the timeframes required by the Contract, this finding can result in a disallowance of Title IV-E funds claimed on behalf of the client. In addition to any other remedy under this Contract, DFPS can require the Contractor to reimburse DFPS for such disallowances, including disallowed costs related to foster care maintenance payments, administrative costs and interest.

C. REPORTING.

The Contractor shall accurately complete time studies, Internal Control Structure Questionnaires (ICSQs), Contract Monitoring surveys, and any other reports required and requested by the Department within time frames specified by DFPS.

D. REMEDIES.

In addition to any other remedy provided under this Contract or state or federal law, DFPS may impose the following:

1. Technical Resolution. DFPS and Contractor will enter into a joint technical resolution process. Both parties will hold face to face meetings or scan calls where both parties will identify issues, barriers, potential solutions, and implementation strategies to fix noncompliance and performance issues. DFPS will document these sessions and provide Contractor with a final technical guidance document to aid in implementation.

2. Corrective Action Plan (CAP). DFPS will provide the Contractor with a CAP that identifies areas of noncompliance, poor performance, or other deficiencies.

a. Contractor must respond in writing within the timeframes required in the CAP, address each identified defect, and provide an appropriately thorough response to the DFPS for review and approval.

b. Upon receipt of the Department’s approval, the Contractor must implement and maintain compliance with the requirements of the CAP.

3. Placement Action. DFPS reserves the right to:

a. Temporarily or permanently remove any or all young adult subject to the terms of this Contract; and/or

b. Suspend and/or limit any further placements of young adult, and place additional conditions on the Contractor.

4. Suspension. DFPS may suspend or remove all or any part of the Contract.

5. Removal of Staff. DFPS reserves the right to require Contractor to remove any employee, volunteer, or agent of the Contractor or any subcontractor from the provision of services under this contract or to prohibit any employee, volunteer, or agent of the Contractor or any subcontractor from having direct contact with DFPS referred clients or client records.

E. INSURANCE.

1. The Contractor will provide DFPS documentation of insurance coverage that meets or exceeds the amount in below and will maintain this insurance coverage and comply with this Section throughout the Contract Term, including any renewals.

a. Commercial General Liability – $300,000 per occurrence and $600,000 aggregate and must also include a Sexual Molestation and Abuse endorsement or equivalent insurance coverage with a minimum limit of $300,000.

b. Crime Policy (3rd Party Endorsement) – $25,000.

2. This insurance coverage will be with insurance companies or equivalent providers that are rated for financial purposes “B” or higher by A.M. Best, as applicable. This insurance company or equivalent provider must be authorized or licensed to do business in the state where the Contractor is located.

3. The Contractor will obtain a Certificate of Insurance or equivalent documentation (hereinafter referred to as “Insurance Document”) with the types of coverage and limits carried by Contractor that meets the requirements in Subsection 1 and provide this Insurance Document to DFPS prior to or upon Contract execution.

4. If the Contractor’s insurance coverage required by this Section is renewed, no longer current or there is a material change to the Insurance Document, then the Contractor will provide DFPS with a current Insurance Document. Furthermore, the Contractor agrees to provide this Insurance Document to DFPS in a manner that ensures DFPS has a current Insurance Document on file, at all times, and will provide additional or requested documentation at any time to DFPS.

5. When an equivalent insurance coverage or Self-Insurance Plan is submitted to satisfy the DFPS insurance coverage requirements in Subsection 1, DFPS may request that additional information be provided by Contractor or Contractor's insurance company or equivalent provider.

6. DFPS has the sole discretion to determine whether an Insurance Document provided to DFPS will be accepted as documentation that the Contractor has met this Section’s requirements.

7. DFPS may require the Contractor to provide any additional documentation to meet the requirements of this Section. DFPS may request that the Contractor permit DFPS to contact Contractor’s insurance company or equivalent provider directly. The Contractor will provide any documents required by DFPS under this Section without additional expense or delay.

F. ASSESSMENTS OF PHYSICAL FACILITIES AND OPERATIONS.

The Contractor will allow periodic assessments of its physical facilities and operations, which may include specific homes, by DFPS employees or DFPS authorized representatives. The Contractor's physical facilities and operations will be approved by the Department based on assessments prior to and during the Contract Term.

G. CONTRACT TERMINATION AND END OF CONTRACT TERM.

In addition to the requirements in the Uniform Terms and Conditions, the following will apply.

1. At the end of the Contract term or other contract termination, the Contractor will, in good faith and in reasonable cooperation with DFPS, aid in the transition to any new arrangement or provider of services.

1. In the event this is not possible to continue to provide SIL Program services at the end of expiration of the Contract, the Contractor and DFPS will work together to ensure that services are continued or transitioned for the Young Adults in accordance all terms and conditions of this Contract, as long as the Young Adult is eligible for SIL Program Services.

1. DFPS will reimburse the Contractor for any services provided after the date of Contract termination or Contract expiration until all Young Adults are removed from receiving the Contractor’s SIL Program services as long as the Young Adult remains eligible to receive SIL Program services.

1. DFPS will terminate this Contract if the Contractor is found liable for or has a contract, license, certificate, or permit of any kind revoked for Medicaid fraud.

SECTION III

PROGRAMMATIC CONDITIONS

A. REPORTING AND NOTIFICATIONS.

Contractor will:

1. Accurately complete reports required and requested within time frames specified by DFPS.

2. Notify the young adult’s DFPS Caseworker and/or Supervisor by telephone and follow-up email of any serious incidents involving young adult(s). Such incidents listed below must be addressed within the following time parameters:

a. No more than 24 hours - Upon discovery a young adult has experienced any serious injury including required medical attention, hospitalization, or death;

b. No more than 24 hours – Upon discovery that a young adult is a danger to self or others and requires placement in another type of setting including, but not limited to hospitalization or incarceration;

c. No more than 24 hours – Upon discovery of an evacuation or emergency relocation due to disaster;

d. No more than 24 hours - Upon discovery of an identified breach of confidentiality of the young adult's information; and

e. No more than five business days - Upon Discovery that a young adult is not participating in school, work, or other activity which qualifies the young adult for Extended Foster Care.

f. Notify DFPS immediately, but no later than 24 hours of when an unplanned discharge occurs as a result of a Young Adult who is gone more than 72 hours without prior notification or contact.

3. The Contractor will provide to the DFPS Contract Manager and the CPS Program Lead for Extended Foster Care/Juvenile Justice:

a. Form 2661 on a monthly basis on or before the 5th day of the month;

b. PCS Form 101SIL by September 1st (and when any change to the prior submitted form occurs);

c. PCS Form 102SIL on September 1st (and when any change to the prior submitted form occurs);

d. On September 1st, an annual self-assessment that includes information on how each young adult who has or is participating in their SIL Program and Setting is:

i. Living independently with minimum supervision;

ii. Experiencing age-appropriate mistakes and consequences and learn responsible behaviors see http://www.dfps.state.tx.us/Doing_Business/Purchased_Client_Services/Residential_Child_Care_Contracts/documents/resources/Provider_Guide_Older_Youth.pdf;

iii. Pursuing educational and/or vocational goals and opportunities;

iv. Establishing gainful employment;

v. Accessing transportation and other community resources;

vi. Developing independent living, healthy interpersonal, and other daily life skills necessary to successfully transition into adulthood and self-sufficiency;

vii. Transitioning Young Adult back to CPS licensed care or to independent living with minimal disruption, as applicable;

viii. Establishing and maintaining relationships with caring adults and supportive networks;

ix. Exploring healthy, safe, and affordable housing options upon discharge from the SIL Setting;

x. If providing ECM services, how the young adult has responded to case management and progressed towards no longer needing ECM services; and

xi. Documenting any changes to the young adult’s placement setting.

B. RECORDS MANAGEGMENT.

In addition to the requirements in Section II of the Uniform Terms and Conditions, the Contractor must maintain a master record for each young adult containing the following:

a. SIL referral and application;

b. Completed intake document;

c. 2085 SIL Placement Authorization;

d. Documentation of all verbal and written (including attempted) contacts with the young adult;

e. Documentation demonstrating that the young adult is engaged in eligible Extended Foster Care activities and the provision of SIL services;

f. Young adult's Child’s Plan of Service;

g. Case notes providing detailed description of service(s) provided, date(s) of service, and other pertinent information;

h. Required reports submitted to the CPS Caseworker and Supervisor;

i. Authorization to Release Information form signed by the young adult prior to the respondent sharing the young adult's personal information;

j. Contractor’s written agreement with young adult completed prior to or at the time of placement in the SIL Program and Setting; and

k. If providing ECM services:

i. Written initial goals to be accomplished in the SIL by the 30th day of SIL placement;

ii. Updates and progress being made during review of the CPOS; and

iii. When ECM services are no longer necessary.

C. MINIMUM REQUIREMENTS OF SETTINGS.

The Contractor will ensure that their setting meets these requirements. DFPS will have sole discretion in determining if minimum requirements are met.

a. Exterior condition and grounds are well-kept, free of defect and no visible safety hazards;

b. Outside lighting is present and functional;

c. Interior condition is clean and maintained, which includes floors, walls and windows;

d. ADA Compliant if young adult requires accommodation;

e. Current and working fire extinguisher;

f. Current and working smoke detectors in bedrooms and common areas;

g. Working stove and refrigerator;

h. Working and reliable utilities to include but not limited to hot and cold water, electrical, gas if applicable, or sewage/septic;

i. Key to unit, bedroom or young adult’s section of apartment;

j. Privacy for young adult, which may include bedroom and bathroom door.

k. Bathroom with shower or tub, toilet and running hot and cold water;

l. Storage space for dry food; and

m. Transportation must be made available when distance or access to public transportation exceeds one mile for education, training, work, grocery store, laundry facilities, bus or metro stop, library or other community resources. If not available, DFPS may grant a waiver of this requirement upon receipt of Contractor’s plan to provide transportation.

5.3 TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

VENDOR UNIFORM TERMS AND CONDITIONS

SECTION I

FUNDING AVAILABILITY & FINANCIAL

A. FUNDING AVAILABILITY.

1. This Contract is contingent upon the continued availability of funding. If funds become unavailable through the lack of appropriations, legislative or executive budget cuts, amendment of the Appropriations Act, state agency consolidation or any other disruptions of current appropriations, DFPS will reduce or terminate this Contract.

2. DFPS is prohibited from incurring obligations in excess of amounts lawfully appropriated by the Texas Legislature over the course of a biennium.

B. PROMPT PAYMENT.

DFPS will pay Contractor according to the Prompt Payment Act, Texas Government Code Chapter 2251.

C. TRAVEL EXPENSES.

Travel expenses authorized by this Contract will be reimbursed according to the rates set by the State of Texas TexTravel (or its successor) program. Furthermore, DFPS reserves the right to reimburse at a rate equal to the rate DFPS employees receive even if the rates set by the State of Texas TexTravel are higher.

D. NO DEBT AGAINST THE STATE.

This Contract will not be construed as creating any debt by or on behalf of the State of Texas.

E. DEBT TO STATE.

If a law prohibits the Texas Comptroller of Public Accounts from making a payment, the Contractor acknowledges that DFPS’ payments under the Contract will be applied toward eliminating the Contractor’s debt or delinquency, regardless of when it arises.

F. RECAPTURE OF FUNDS.

Contractor agrees that:

1. DFPS will withhold all or part of any payments to Contractor to offset overpayments made to Contractor. Overpayments, as used in this Section, include payments made by DFPS that exceed the maximum allowable rates, not allowed under applicable laws, rules, or regulations or that are otherwise inconsistent with this Contract, including any unapproved expenditures;

2. It will return to DFPS any amounts paid that are disallowed pursuant to financial and compliance audit(s) of funds received under this Contract; and

3. Reimbursement of such disallowed costs will be paid by Contractor from funds which were not provided or otherwise made available to Contractor under this Contract or from a source of federal funds derived from programs administered by DFPS or the State of Texas.

G. FINANCIAL REMEDIES.

In addition to any other remedy under law, DFPS reserves the right to implement financial remedies based on monitoring or audit findings related to violations of this Contract’s requirements including recovery of all actual damages DFPS accrues as a result of a Contractor's noncompliance. As applicable to this Contract, additional financial remedies or liquidated damages may be provided for in this Contract’s Supplemental and Special Conditions.

H. INSURANCE.

1. Unless otherwise specified in this Contract, Contractor will acquire and maintain, for the duration of this Contract, insurance coverage necessary to ensure proper fulfillment of this Contract and potential liabilities thereunder with financially sound and reputable insurers licensed by the Texas Department of Insurance, in the type and amount customarily carried within the industry or as determined by DFPS.

2. Contractor will provide evidence of insurance upon request by DFPS.

3. In the event that any policy is determined by DFPS to be deficient and does not comply with the terms of this Contract, Contractor will secure such additional coverage as required by DFPS, law or regulation.

4. If coverage expires during the term of this Contract, Contractor must produce renewal certificates for each type of coverage.

SECTION II

RECORDS – ACCESS, AUDIT & RETENTION

A. RECORDS RETENTION AND ACCESS.

1. Contractor will keep and maintain accurate and complete records necessary to determine compliance with this Contract and applicable laws.

2. As applicable to the Contract, Residential Child Care providers will keep and maintain accurate and complete records that follow Generally Accepted Accounting Principles (GAAP) that are applicable to their particular type of organization.

3. Contractor will provide access to its records to DFPS, the Texas State Auditor’s Office (SAO), the Federal Government, and their authorized representatives.

4. Unless otherwise specified in this Contract, Contractor will maintain legible copies of this Contract and all related documentation for a minimum of seven years after the termination of this Contract or seven years after the completion of any litigation or dispute involving the Contract, whichever is longer.

5. THE CONTRACTOR WILL NOT DISPOSE OF RECORDS BEFORE PROVIDING THE DFPS CONTRACT MANAGER WRITTEN NOTICE OF ITS INTENT TO DISPOSE OF RECORDS AND RECEIVING WRITTEN APPROVAL FROM THE DFPS CONTRACT MANAGER.

B. SAO AUDIT.

1. Contractor understands that acceptance of funds under this Contract or through a subcontract acts as acceptance of the authority of the SAO or any successor agency, to conduct an audit or investigation in connection with those funds.

2. Under the direction of the Legislative Audit Committee, an entity that is the subject of an SAO audit or investigation must provide the SAO access to any information that is considered relevant.

3. Contractor agrees to cooperate fully with the SAO, or its successor, in the conduct of the audit or investigation, including providing all records requested.

4. Contractor will ensure that this clause, concerning the authority to audit funds received indirectly by subcontractors related to this Contract and the requirement to cooperate, is included in any subcontracts it awards.

C. COMPLIANCE WITH AUDIT OR INSPECTION FINDINGS.

1. Contractor will implement all corrections necessary to address any finding of noncompliance with any law, regulation, audit requirement, accounting principle, or deficiency identified in any audit, review, or inspection of this Contract.

2. Any such correction will be at Contractor or its subcontractor's sole expense.

3. Whether Contractor's action corrects the noncompliance will be solely the decision of DFPS.

4. Contractor must provide, at DFPS’ request, a copy of those portions of Contractor's and its subcontractors' internal audit reports relating to this Contract.

D. CONFIDENTIAL INFORMATION.

1. Contractor agrees to only use DFPS confidential information for the purpose of this Contract and comply with all applicable state and federal laws when it receives and stores DFPS confidential information, including, but not limited to, the following enumerated. This includes any communication or record regardless of form or format provided or made available through any means and includes records or information that identifies DFPS children or clients.

a. Section 106 of the Child Abuse Prevention and Treatment Act (CAPTA), codified at 42 U.S.C. 5106a;

b. Section 471 of Title IV-E of the Social Security Act, codified at 42 U.S.C. 671(a)(8), and related federal rules at 45 CFR 1355.30 & 45 CFR 205.50;

c. Social Security Administration Data, including, without limitation, Medicaid information (The Social Security Act, 42 U.S.C. Chapter 7);

d. Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g; 34 CFR Part 99;

e. Protected Health Information, including Electronic Protected Health Information or Unsecured Protected Health Information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. Chapter 7, Subchapter XI, Part C; 45 CFR Parts 160 and 164;

f. Confidentiality of Alcohol and Drug Abuse Patient Records, 42 U.S.C. §290dd-2, 42 CFR Part 2;

g. Federal Tax Information, Internal Revenue Code, Title 26 of the United States Code including IRS Publication 1075;

h. The Privacy Act of 1974, as amended by the Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. §552a;

i. Personal Identifying Information defined by Texas Business and Commerce Code Chapter 521, and OMB Memorandum 07-16, Safeguarding Against and Responding to the Breach of Personally Identifiable Information;

j. Texas Family Code §261.201 and related provisions in Chapters 261 and 264;

k. Texas Health and Safety Code §81.046 and Chapters 181 and 611;

l. Texas Human Resources Code §12.003, §40.005, and Chapter 48;

m. Texas Public Information Act, Texas Government Code Chapter 552;

n. 19 Texas Administrative Code Chapter 702 Subchapter F (Child Protective Services), and Chapter 705 Subchapter M (Adult Protective Services); and

o. Criminal History Record Information guidelines in the FBI’s Criminal Justice Information Services (CJIS) Security Policy.

2. Contractor will notify DFPS immediately, but not later than 24 hours, after Contractor discovers any possible or actual unauthorized disclosure or breach of DFPS confidential information. Contractor will also fully cooperate with DFPS in investigating, mitigating and issuing notifications for an unauthorized disclosure or breach as directed by DFPS.

3. Contractor will only disclose information according to applicable law and will notify DFPS as required by the applicable law, when it makes a disclosure.

4. In the event the Contractor receives a request or demand for confidential information or records in connection with any discovery, investigative, civil, criminal or other similar legal process, they will provide DFPS with written notice of this request or demand within two business days of receiving it.

E. PUBLIC INFORMATION ACT.

1. Information related to this Contract will be subject to the Public Information Act (PIA) found at Texas Government Code Chapter 552 and withheld from public disclosure or released only in accordance with the PIA.

2. In accordance with Section 2252.907 of the Texas Government Code, the Contractor is required to make any information created or exchanged with DFPS pursuant to the Contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to DFPS.

SECTION III

OWNERSHIP & INTELLECTUAL PROPERTY

A. OWNERSHIP.

DFPS owns all work produced by Contractor under this Contract.

B. INTELLECTUAL PROPERTY.

1. To the extent any services, deliverables or work performed by Contractor results in the creation of intellectual property, all right, title, and interest in and to such intellectual property, will vest in DFPS upon creation and will be deemed to be a “work made for hire,” and made in the course of the services rendered pursuant to this Contract.

2. To the extent that title to any such intellectual property will not by law vest in DFPS, or such intellectual property will not be considered a “work made for hire,” Contractor hereby irrevocably assigns all rights, title, and interest therein to DFPS.

3. Contractor must give DFPS and the State of Texas, as well as any person designated by DFPS or the State of Texas, all assistance required to perfect the rights defined in this Section, without any additional charge or expense beyond the stated amount payable to Contractor authorized under this Contract.

SECTION IV

NOTICE

A. NOTICE OF LEGAL MATTER OR LITIGATION.

Contractor will notify their assigned DFPS Contract Manager of any litigation or legal matter related to or affecting this Contract within seven calendar days of Contractor becoming aware of the litigation or legal matter.

B. NOTICE OF CHANGE IN CONTACT PERSON OR KEY PERSONNEL OR MATTERS IMPACTING CONTRACT.

The Contractor will notify their assigned DFPS Contract Manager within ten days of any change to the Contractor’s Contact Person or Key Personnel in the Contract or any matter impacting the Contract, which includes but is not limited to changes to Contractor's name or identity, ownership, control, governing board membership, any problem or potential problem associated with its performance or services, or payee identification number.

C. COMPLAINT REPORTING.

Unless otherwise noted in this Contract, DFPS will contact the Contractor when it receives a complaint about the Contractor and advise the Contractor whether DFPS will conduct an investigation or will coordinate with the Contractor for an investigation. When DFPS requires the Contractor to conduct any part of the complaint investigation, Contractor must respond in writing to DFPS with all information and according to DFPS’s requirements and specified time frames.

SECTION V

AMENDMENT

A. BILATERAL AMENDMENT.

Except as provided for in the Unilateral Amendment section below, this Contract can only be changed by a Bilateral Amendment executed by both Parties.

B. UNILATERAL AMENDMENT.

A Unilateral Amendment will be effective on the date that is specified in it. DFPS will have the sole discretion to issue a Unilateral Amendment to modify a Contract’s requirements, terms, or conditions as follows:

1. Correct an obvious clerical error;

2. Modify a Contract Number or Agency ID Number;

3. Incorporate new or revised state or federal laws, regulations, rules or policies;

4. Comply with a court order or judgment;

5. Update service level description or daily rates;

6. Update Contractor’s name as recorded by the Secretary of State, as required by law or as authorized by DFPS;

7. Change either Party’s Contract Manager or contact information;

8. Change any recorded license number based on information obtained from the agency or entity issuing the license; and

9. For Open Enrollments only, add or delete a geographic service area, service delivery location, or service type, as long as it is part of a current Open Enrollment.

SECTION VI

TERMINATION

A. TERMINATION FOR CONVENIENCE.

DFPS will terminate the Contract, in whole or in part, at any time when, in its sole discretion, DFPS determines that termination is in the best interests of the State of Texas. The termination will be effective on the date specified in DFPS’ notice of termination.

B. TERMINATION FOR CAUSE.

1. If the Contractor fails to provide the services or goods required by this Contract or fails to comply with any terms or conditions of it, DFPS will terminate the Contract in whole or part.

2. In addition to any other remedy allowed by law, Contractor will be responsible to DFPS for all costs incurred by DFPS and the State of Texas to replace the Contractor. These costs include, but are not limited to, the costs of procuring a substitute Contractor and the cost of any claim or litigation that is reasonably attributable to Contractor’s failure to provide services or goods.

C. EQUITABLE SETTLEMENT.

Any early termination under this Contract will be subject to the equitable settlement of the respective interests of the Parties up to the date of termination.

SECTION VII

GENERAL PROVISIONS

A. GOVERNING LAW AND VENUE.

This Contract and the rights and obligations of the Parties will be governed by and construed according to the laws of the State of Texas, exclusive of any conflicts of law provisions. Venue for any suit brought under this Contract will be in a court of competent jurisdiction in Travis County, Texas unless otherwise elected by DFPS. Contractor irrevocably waives any objection, including any objection to personal jurisdiction or the laying of venue or based on the grounds of forum non conveniens, which it will now or hereafter have to the bringing of any action or proceeding in such jurisdiction with respect to this Contract.

B. INDEMNITY.

1. CONTRACTOR WILL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND ITS OFFICERS AND EMPLOYEES, AND DFPS AND ITS OFFICERS AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, ACTIONS, SUITS, DEMANDS, PROCEEDINGS, COSTS, DAMAGES, AND LIABILITIES, INCLUDING ATTORNEYS’ FEES AND COURT COSTS, ARISING OUT OF OR RESULTING FROM:

a. CONTRACTOR'S PERFORMANCE UNDER THE CONTRACT, INCLUDING ANY NEGLIGENT ACTS OR OMISSIONS OF CONTRACTOR, OR ANY AGENT, EMPLOYEE, SUBCONTRACTOR, OR SUPPLIER OF THE CONTRACTOR, OR ANY THIRD PARTY UNDER THE CONTROL OR SUPERVISION OF THE CONTRACTOR, IN THE EXECUTION OR PERFORMANCE OF THIS CONTRACT;

b. ANY BREACH OR VIOLATION OF A STATUTE, ORDINANCE, GOVERNMENTAL REGULATION, STANDARD OR RULE OF CONTRACT BY THE CONTRACTOR OR ANY AGENT, EMPLOYEE, SUBCONTRACTOR, OR SUPPLIER OF THE CONTRACTOR, OR ANY THIRD PARTY UNDER THE CONTROL OR SUPERVISION OF THE CONTRACTOR, IN THE EXECUTION OR PERFORMANCE OF THIS CONTRACT;

c. EMPLOYMENT OR ALLEGED EMPLOYMENT DISCRIMINATION, INCLUDING CLAIMS OF DISCRIMINATION AGAINST CONTRACTOR, ITS OFFICERS, OR ITS AGENTS; OR

d. WORK UNDER THIS CONTRACT THAT INFRINGES OR MISAPPROPRIATES ANY RIGHT OF ANY THIRD PERSON OR ENTITY BASED ON COPYRIGHT, PATENT, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS.

2. NOTHING IN THIS CONTRACT WILL BE CONSTRUED AS A WAIVER OF DFPS’ SOVEREIGN IMMUNITY.

3. IF DFPS IS NAMED DEFENDANT IN ANY SUIT INVOLVING THIS CONTRACT, THE DEFENSE WILL BE COORDINATED BY THE CONTRACTOR WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL. CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT REGARDING SUITS INVOLVING THIS CONTRACT IF DFPS IS A NAMED DEFENDANT WITHOUT FIRST OBTAINING THE CONCURRENCE OF THE TEXAS ATTORNEY GENERAL.

C. BACKGROUND HISTORY CHECKS AND RIGHT OF REMOVAL.

1. Before providing direct services, having direct client contact and/or access to client records, the Contractor will submit information necessary for DFPS to conduct background checks on its employees, subcontractors or volunteers according to DFPS Background Checks Handbook under the applicable policy section at http://www.dfps.state.tx.us/handbooks/Background_Checks/default.asp, including any required disclosures. Furthermore, before the employee, subcontractor or volunteer can provide direct services, have direct contact or access client records, the Contractor must receive notice from DFPS that the background check has been approved.

2. If while providing direct services, having direct client contact and/or access to client records, the Contractor becomes aware of any new arrest or investigation of abuse or neglect conducted by any federal, state or local agency or board of an employee, subcontractor or volunteer, then the Contractor will notify DFPS within ten business days of them becoming aware of it. DFPS will determine if and when the employee, subcontractor or volunteer can have direct contact with clients.

D. ASSIGNMENTS.

Contractor will not assign all or any portion of its rights under, interests in, or duties required under this Contract without prior written consent of DFPS. Any attempted assignment in violation of this Section is void and without effect. This Section will not prohibit collateral assignment of payments for the purpose of secured lending arrangements in the ordinary course of business.

Contractor agrees that DFPS may, in one or more transactions, assign, pledge, or transfer this contract.

E. SEVERABILITY.

If any provision contained in this Contract is held to be unenforceable by a court of law or equity, this Contract will be construed as if such provision did not exist and the non-enforceability of such provision will not be held to render any other provisions of this Contract unenforceable.

F. SURVIVABILITY.

Termination or expiration of this Contract will not release either party from any liabilities or obligations that the Parties have expressly agreed will survive any such termination or expiration, remain to be performed, or by their nature would be intended to be applicable following any such termination or expiration, including maintaining confidentiality of information and records retention.

G. FORCE MAJEURE.

Except with respect to the obligation of payments under this Contract, if either of the Parties, after a good faith effort, is prevented from complying with any express or implied covenant of this Contract by reason of war; terrorism; rebellion; riots; strikes; acts of God; any valid order, rule, or regulation of any governmental authority; or similar events that are beyond the control of the affected Party (collectively referred to as a “Force Majeure”), then, while so prevented, the affected Party’s obligation to comply with such covenant will be suspended, and the affected Party will not be liable for damages for failure to comply with such covenant. In any such event, the Party claiming Force Majeure will promptly notify the other Party of the Force Majeure event in writing of the reason for such delay, estimated duration of the delay, and the steps taken to minimize the delay.

H. AUTHORITY OF DFPS STAFF.

DFPS staff are not authorized to sign non-DFPS forms, unless those forms have received prior approval by DFPS. DFPS is not bound to the terms of any forms signed by unauthorized staff.

I. DISPUTE RESOLUTION.

The Parties will use the dispute resolution process in Texas Government Code Chapter 2260 to resolve any dispute arising under this Contract. Contractor’s Notice of Claim of Breach of Contract is delivered to their assigned DFPS Contract Manager in their Contract and to the DFPS Office of General Counsel at the address listed below, by hand, certified mail return receipt requested, or other verifiable delivery service, and is effective on date received.

Office of General Counsel Physical Address 4900 N. Lamar Blvd. Austin, TX 78751 Mailing Address

J. WAIVER.

DFPS’ failure to enforce any provision of this Contract or its payment for services or goods provided under this Contract, will not constitute a waiver of any provision of the Contract.

K. HISTORICALLY UNDERUTILIZED BUSINESS (HUB).

Contractor will provide pertinent details of any participation by a HUB in fulfilling the duties and obligations arising under this Contract.

L. CIVIL RIGHTS.

1. Contractor agrees to comply with state and federal anti-discrimination laws, including:

a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.);

b. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794);

c. Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.);

d. Age Discrimination Act of 1975 (42 U.S.C. §§6101-6107);

e. Title IX of the Education Amendments of 1972 (20 U.S.C. §§1681-1688);

f. Food and Nutrition Act of 2008 (7 U.S.C. §2011 et seq.); and

g. DFPS's administrative rules, as set forth in the Texas Administrative Code, to the extent applicable to this Contract.

2. Contractor agrees to comply with all amendments to these laws, and all requirements imposed by the regulations issued pursuant to these laws. These laws provide in part that no persons in the United States will, on the grounds of race, color, national origin, sex, age, disability, political beliefs, or religion, be excluded from participation in or denied any service or other benefit provided by federal or state funding or otherwise be subjected to discrimination.

3. Contractor agrees to comply with Title VI of the Civil Rights Act of 1964, and its implementing regulations found at 45 CFR Part 80 or 7 CFR Part 15, prohibiting a contractor from adopting and implementing policies and procedures that exclude or have the effect of excluding or limiting the participation of clients in its programs, benefits, or activities on the basis of national origin. Civil rights laws require contractors to provide alternative methods for ensuring access to services for applicants and recipients who cannot express themselves fluently in English. Contractor agrees to take reasonable steps to provide services and information, both orally and in writing and electronically, in appropriate languages other than English to ensure that persons with limited English proficiency are effectively informed and can have meaningful access to government funded programs, benefits, and activities.

4. Contractor agrees to post applicable civil rights posters in areas open to the public informing clients of their civil rights and including contact information for the HHSC Civil Rights Office. The posters are available on the HHSC website at: http://hhscx.hhsc.texas.gov/system-support-services/civil-rights/publications.

5. Contractor agrees to comply with Executive Orders 13279 and 13559, and their implementing regulations at 45 CFR Part 87 or 7 CFR Part 16. These provide in part that any organization that participates in programs funded by direct financial assistance from the United States Department of Agriculture or the United States Department of Health and Human Services will not discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief. Contractor must provide written notice to beneficiaries of these rights.

6. Upon request, Contractor will provide Texas Health and Human Services Commission (HHSC) Civil Rights Office with copies of the Contractor's civil rights policies and procedures.

7. Contractor must notify HHSC’s Civil Rights Office of any civil rights complaints received relating to its performance under this Contract. This notice must be delivered no more than ten calendar days after receipt of a complaint. This notice must be directed to the following.

HHSC Civil Rights Office North Austin Complex 4601 W. Guadalupe Street, Mail Code W206 Austin, Texas 78751 Phone Toll Free: (888) 388-6332 Phone: (512) 438-4313 TTY Toll Free: (877) 432-7232 Fax: (512) 438-5885

M. PERMIT AND LICENSE.

Contractor will be responsible at their expense for obtaining all permits and licenses required by city, county, state or federal rules, regulations or laws necessary or required for the Contractor to provide services or goods under this Contract.

N. WARRANTY.

Contractor warrants that all services, deliverables and work done under this Contract will be completed in a manner consistent with generally accepted standards in the applicable trade, profession, or industry and conform to or exceed the specifications set forth in the Contract and be fit for ordinary use, of good quality, and contain no material defects.

O. E-VERIFY/EMPLOYEE ELIGIBILITY.

By entering into this Contract, Contractor certifies and ensures that it utilizes and will continue to utilize, for the term of this Contract, the U.S. Department of Homeland Security's e-Verify system to determine the eligibility of all persons employed during the Contract term to perform duties within Texas and all persons (including subcontractors) assigned by the Contractor to perform services, deliverables and work pursuant to the Contract.

P. REPORT OF WASTE, FRAUD OR ABUSE.

Contractors who suspect fraud, waste or abuse (including employee misconduct that would constitute fraud, waste, or abuse) are required to immediately contact both the Texas HHSC Office of the Inspector General at 1-800-436-6184 and the Texas State Auditor's Office at https://sao.fraud.texas.gov/ReportFraud/.

Q. CULTURAL COMPETENCE.

1. Contractor will make reasonable efforts to provide services that meet each client’s individual needs and takes into consideration the intellectual functioning, literacy, level of education and comprehension ability of each client in order to ensure that all information is presented in a way that meets each client’s individual needs.

2. Contractor will provide services in the client's primary language either directly by Contractor or by a DFPS approved translator.

3. Contractor will have a cultural competence mission statement, core values or other similar guidance that provides how the Contractor will effectively provide these services to clients of various cultures, races, ethnic backgrounds and religions in a manner that recognizes and affirms the client’s worth, protects and preserves the client’s dignity and ensures equity of service delivery.

R. PUBLICITY.

Contractor must not use the name of, or directly or indirectly refer to, DFPS, the State of Texas, or any other state agency in any media release, public announcement, or public disclosure relating to the Contract or its subject matter, including in any promotional or marketing materials, customer lists, or business presentations.

Contractor will publish, at its sole expense, results of Contractor performance under the Contract with DFPS’s prior review and written approval, which DFPS will withhold at its sole discretion. Contractor will acknowledge the support received in all format types (written, visual and audio) from DFPS and the Federal Agency as applicable.

S. LIMITATION OF DFPS NAME, SEAL OR LOGO.

1. Contractor will not use the DFPS name, seal or logo in any form or manner without the prior written approval of DFPS.

2. Contractor will not use the DFPS name, seal or logo to imply any endorsement, approval, or sponsorship of Contractor's goods or services by DFPS.

T. SUBCONTRACTING.

As applicable under the Contract, Contractor will comply with the following.

1. Contractor will be responsible to DFPS for any subcontractor's performance under this Contract. Subcontractors providing services under the Contract will meet the same requirements and level of experience as required of Contractor.

2. No subcontract under the Contract will relieve Contractor of responsibility for ensuring the requested services are provided.

3. Contractor cannot subcontract case management services without DFPS prior written permission.

4. Contractors planning to subcontract all, or a portion, of the work to be performed will identify the proposed subcontractors.

5. Subcontracting will be solely at Contractor’s expense.

6. DFPS retains the right to check subcontractor’s background and approve or reject the use of submitted subcontractors.

7. Contractor will be the sole contact for DFPS and Contractor will list a designated point of contact for all DFPS inquiries.

8. Contractor will include a term in all subcontracts that incorporates this Contract by reference and binds subcontractors to all the requirements, terms, and conditions of this Contract related to the service being provided by the subcontractor, as well as explicitly hold that this Contract controls in the event of any conflict with subcontract. DFPS approval of Contractor's use of any subcontractor is conditioned upon the extent that any subcontract does not conflict with any requirements of the Contract between DFPS and Contractor.

9. Payments to subcontractors will be made pursuant to the Prompt Payment Act, Texas Government Code Chapter 2251.

U. VENDOR PERFORMANCE TRACKING SYSTEM REPORTING.

If applicable to this Contact, under Texas Government Code Sections 2155.089 and 2262.055, DFPS is required to report vendor performance to the Texas Comptroller through the Vendor Performance Tracking System (VPTS) during and at completion of this Contract. DFPS may use this information in the future when making contract awards.

V. REPORTING ABUSE, NEGLECT, OR EXPLOITATION.

Contractor will report any suspected case of abuse, neglect, or exploitation to the appropriate authority as required by the Texas Family Code Chapter 261. All reports must be made within 24 hours of the discovery of the suspected abuse, neglect, or exploitation to DFPS Statewide Intake by either phone at 1-800-252-5400 or online at https://www.txabusehotline.org/Login/Default.aspx.

W. INFORMATION SECURITY AND CYBERSECURITY TRAINING REQUIREMENTS.

As applicable to this Contract, the Contractor must comply with DFPS’ Data and System Security Requirements at http://www.dfps.state.tx.us/Doing_Business/documents/Contractor_Data_and_System_Security_Requirements.pdf and agrees to periodically check for any updates made to this document and comply with any updates made to these requirements.

X. REMOVAL OF ACCESS.

Contractor will immediately remove access capabilities to any DFPS automated/internet-based application(s), or immediately notify DFPS that access to such applications needs to be terminated for an employee, subcontractor, or volunteer whose employment, subcontract, or volunteer term with Contractor has ended for any reason.

Y. BUSINESS CONTINUITY AND DISASTER RECOVERY PLANS.

Upon request from DFPS, Contractor will provide copies of its most recent business continuity and disaster recovery plans.

SECTION VIII

CERTIFICATIONS & AFFIRMATIONS

As applicable to this Contract, Contractor certifies and affirms that by entering into this Contract that these certifications and affirmations apply to Contractor, and all of Contractor's principals, officers, directors, shareholders, partners, owners, agents, employees, subcontractors, independent contractors, and any other representatives who will provide services under, who have a financial interest in, or otherwise have an interest in this Contract.

A. Dealing with Public Servants. Contractor has not given, offered to give, and does not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with this Contract.

B. Prior Disaster Relief Contract Violation. Under Texas Government Code §§2155.004 (regarding the prohibition of certain financial participation by persons) and 2155.006 and 2261.053 (both relating to ability to receive this Contract, and convictions or penalties regarding Hurricane Rita, Hurricane Katrina or other disasters), Contractor acknowledges that it is not ineligible to receive this Contract and that this Contract will be terminated and payment withheld if this certification is found to be inaccurate.

C. Child Support Affirmation Obligation. Under Texas Family Code §231.006 (relating to delinquent child support), Contractor acknowledges that it is not ineligible to receive the specified grant, loan, or payment and acknowledges that this Contract will be terminated and payment will be withheld if this certification is found to be inaccurate.

D. Suspension and Debarment. Contractor is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency under the regulations implementing Executive Order 12549 and Executive Order 12689, Debarment and Suspension, 2 CFR Part 376, and any relevant regulations promulgated by the department or agency funding this project. Contractor agrees that this provision will be included in its entirety in Contractor’s subcontracts if payment in whole or in part is from federal funds. Furthermore, Contractor acknowledges that it has not been subjected to suspension, debarment, or similar ineligibility determined by any state or local governmental entity.

E. Excluded Parties. Contractor is not listed on the federal government's terrorism watch list described in Executive Order 13224. Entities ineligible for federal procurement are listed at https://sam.gov/search/?index. This Contract will be terminated and payment withheld if this certification is inaccurate. This provision will be included in its entirety in Contractor’s subcontracts.

F. Executive Head of a State Agency Affirmation. Under Texas Government Code §669.003 (relating to contracting with the executive head of a state agency), Contractor acknowledges that it is not the executive head of DFPS, was not at any time during the past four years the executive head of DFPS and does not employ a current or former executive head of DFPS.

G. Franchise Tax Status. Contractor acknowledges that it is not currently delinquent in the payment of any franchise taxes owed to the State of Texas under Texas Tax Code Chapter 171.

H. Lobbying Prohibition. Payments to Contractor and Contractor's receipt of appropriated or other funds under this Contract are not prohibited by Texas Government Code §§556.005, 556.0055 or 556.008 (relating to use of appropriated money or state funds to employ or pay lobbyists, lobbying expenses, or influence legislation).

I. Buy Texas Affirmation. If this Contract is for services, the Contractor will comply with Texas Government Code §2155.4441 for the purchase of products and materials produced in the State of Texas. However, this Section is not applicable to Contracts or Agreements with federal funding that further prohibits the use of geographic preferences.

J. Antitrust Affirmation. Contractor has not violated state or federal antitrust laws and has not communicated its bid for this Contract directly or indirectly to any competitor or any other person engaged in such line of business. Contractor hereby assigns to DFPS any claims for overcharges associated with this Contract under 15 U.S.C. §1, et seq., and Texas Business and Commerce Code §15.01, et seq.

K. Entities that Boycott Israel. If the Contractor is a “Company” under Texas Government Code §808.001, at the time of executing this Contract, the Contractor is certifying that it does not boycott Israel and will not boycott Israel during the term of this Contract.

L. Human Trafficking Prohibition. Under Texas Government Code §2155.0061, Contractor certifies that it is not ineligible to receive this contract and acknowledges that this contract may be terminated and payment withheld if it is found…