ESBD_383499_1732773512664_Appendix C - General Provisions.docx

FISCAL YEAR 25 - GENERAL PROVISIONS

(CORE/SUBRECIPIENT)

ARTICLE I CONTRACT COMPONENTS

Section 1.01 Contract Components.

As used in herein, the “Contract” consists of the following documents:

a. The Core Contract and the Program Attachment(s) or statements of work, including all attachments,

b. Addenda or amendments thereto and these Fiscal Year 25 General Provisions;

c. The solicitation document, including all attachments, addenda or amends thereto; and

d. The response, proposal, application, and addendums submitted by Contractor in response to the solicitation document.

Section 1.02 Order of Precedence.

To the extent that there is any conflict between the terms of any contract component document, the conflict will be resolved in the above order or priority in Section 1.01.

ARTICLE II COMPLIANCE AND REPORTING

Section 2.01 Compliance. Subcontractor shall comply and shall require its Vendor Subcontractor(s) to comply, with the requirements of these General Provisions and all other applicable state and federal statutes, regulations, rules, and executive orders, as such statues, regulations, rules, and executive orders including as such statues, regulations, rules and executive order may be amended.

Section 2.02 Precedence of Contract Terms. To the extent this Contract imposes a higher standards or additional requirements beyond those required by applicable statues, regulations, rules or executive orders, the terms of this Contract shall take precedence and control.

Section 2.03 Effect of Legislative Changes. Subcontractor agrees that upon notification from the South Texas Development Council (STDC), Subcontractor shall comply with any changes to the term of the contract include in its contracts that are a result of legislation during the term of this Contract.

Section 2.04 Compliance with Requirements of Solicitation Document. If applicable and except as specified in these General Provisions or the Contract’s terms, the Subcontractor shall comply with the requirements, eligibility conditions, assurances, certifications and program requirements of the Solicitation Document, if any, (including any revised or additional terms agreed to in writing by Subcontractor and STDC prior to execution of this Contract) for the duration of this Contract or any subsequent renewals. The Parties agree that the STDC has relied upon the Subcontractor’s response to the Solicitation Document. The Parties agree that any misrepresentation contained in the Subcontractor’s response to the Solicitation Document constitutes a breach of this Contract and may result in termination.

Section 2.05 Reporting. Subcontractor shall submit reports in accordance with the reporting requirements established by the STDC and/or Department and provided for in the Contract and in these General Provisions. Except as otherwise provided for in this Contract or General Provisions. The Subcontractor shall submit reports to the designated staff at STDC. Subcontractor shall provide any other information requested by the STDC and/or Department in the format required by STDC. Failure to submit any required report or additional requested information by the due date specified in the Contract, Program Attachment(s) or upon request constitutes a breach of contract, may result in delayed payment and/or the imposition of sanctions and remedies. Failure to comply with a reporting requirement may adversely affect evaluation of Subcontractor’s ability to contract in the future with STDC and/or Department.

Section 2.06 Applicable Contracts Law and Venue for Disputes. Except as provided in Article XV and XVI, all issues related to contract, including formation, performance and interpretation that may arise in any dispute between the Parties, this Contract will be governed by and construed in accordance with, the laws of the State of Texas. In the event of a dispute between the Parties, venue for any suit will be Webb County, Texas.

Section 2.07 Statutes and Standards of General Applicability. Subcontractor is responsible for reviewing and complying with all applicable statutes, rules, regulations, executive orders and policies. To the extent applicable to Subcontractor, Subcontractor agrees and shall comply with the following:

a. Statutes, rules, regulations, and STDC and/or DSHS policy (and any of their subsequent amendments) that collectively prohibit discrimination, exclusion from or limitation of participation in programs, benefits or activities or denial of any aid, care, service or other benefit on the basis of race, color, national origin, limited English proficiency, sex, sexual orientation (where applicable), disabilities, age, substance use disorder, political belief or religion:

1. Title VI of the Civil Rights Act of 1964, 42 USC §§ 2000d et seq.;

2. Title IX of the Education Amendments of 1972, 20 USC §§ 1681-1683, and 1685-1686;

3. Section 504 of the Rehabilitation Act of 1973, 29 USC § 794(a);

4. the Americans with Disabilities Act of 1990, 42 USC §§ 12101 et seq.;

5. Age Discrimination Act of 1975, 42 USC §§ 6101-6107;

6. Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, 42 USC § 290dd (b)(1);

7. 45 CFR Parts 80, 84, 86 and 91;

8. U.S. Department of Labor, Equal Employment Opportunity E.O. 11246;

9. Texas Labor Code Chapter 21;

10. Food Stamp Act of 1977 (7 USC § 2011 et seq.);

11. Executive Order 13279, 45 CFR Part 87 or 7 CFR Part 16 regarding equal treatment and opportunity for religious organizations;

12. Drug Abuse Office and Treatment Act of 1972, 21 USC §§ 1101 et seq., relating to drug abuse;

13. Public Health Service Act of 1912, §§ 523 and 527, 42 USC § 290dd-2, and 42 CFR Part 2, relating to confidentiality of alcohol and drug use client records;

14. Title VIII of the Civil Rights Act of 1968, 42 USC §§ 3601 et seq., relating to nondiscrimination in housing;

15. DSHS Policy AA-5018, Non-discrimination Policy for DSHS Programs; and

16. Subcontractor shall have in place comprehensive non-discrimination policies, which prohibits discrimination on the basis of race, color, national origin, religion, sex, sexual orientation, age, or disability, gender identity, and any other non-discrimination provision.

b. Immigration Reform and Control Act of 1986, 8 USC § 1324a, and Immigration Act of 1990, 8 USC 1101 et seq., as amended by Public Law 113-4 (March 7, 2013), regarding employment verification; and Illegal Immigration Reform and Immigrant Responsibility Act of 1996;

c. Pro-Children Act of 1994, 20 U.S.C §§ 6081-6084, and Pro-Children Act of 2001, 20 USC § 7183, regarding the non-use of all tobacco products;

d. National Research Service Award Act of 1971, 42 USC §§ 289a-1 et seq., and 6601 (PL 93-348 and PL 103-43), regarding human subjects involved in research;

e. Hatch Political Activity Act, 5 USC §§ 1501-1508 and 7324-26, which limits the political activity of employees whose employment is funded with federal funds;

f. Fair Labor Standards Act, 29 USC §§ 201 et seq., and the Intergovernmental Personnel Act of 1970, 42 USC §§ 4701 et seq., as applicable, concerning minimum wage and maximum hours;

g. Texas Government Code Chapter 469 pertaining to eliminating architectural barriers for persons with disabilities;

h. Texas Workers’ Compensation Act, Texas Labor Code, Chapters 401-406 and 28 Texas Administrative Code (TAC) Part 2, regarding compensation for employees’ injuries;

i. The Clinical Laboratory Improvement Amendments of 1988, 42 USC § 263a, regarding the regulation and certification of clinical laboratories;

j. The Occupational Safety and Health Administration Regulations on Blood Borne Pathogens, 29 CFR § 1910.1030, or Title 25 Texas Admin Code Chapter 96 regarding safety standards for handling blood borne pathogens;

k. Laboratory Animal Welfare Act of 1966, 7 USC §§ 2131 et seq., pertaining to the treatment of laboratory animals;

l. Environmental standards pursuant to the following:

1. Institution of environmental quality control measures under the National Environmental Policy Act of 1969, 42 USC §§ 4321-4347 and Executive Order 11514 (35 Fed. Reg. 4247), “Protection and Enhancement of Environmental Quality;”

2. Notification of violating facilities pursuant to Executive Order 11738 (40 CFR Part 32), “Providing for Administration of the Clean Air Act and the Federal Water Pollution Control Act with respect to Federal Contracts, Grants, or Loans;”

3. Protection of wetlands pursuant to Executive Order 11990, 42 Fed. Reg. 26961;

4. Evaluation of flood hazards in floodplains in accordance with Executive Order 11988, 42 Fed. Reg. 26951 and, if applicable, flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (PL 93-234);

5. Assurance of project consistency with the approved State Management program developed under the Coastal Zone Management Act of 1972, 16 USC §§ 1451 et seq;

6. Federal Water Pollution Control Act, 33 USC § 1251 et seq.;

7. Protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, 42 USC §§ 300f-300j;

8. Protection of endangered species under the Endangered Species Act of 1973, 16 USC §§ 1531 et seq.;

9. Conformity of federal actions to state clean air implementation plans under the Clean Air Act of 1955, 42 USC §7401 et seq.; and

10. Wild and Scenic Rivers Act of 1968 (16 USC §§ 1271 et seq.) related to protecting certain river systems.

m. Lead-Based Paint Poisoning Prevention Act (42 USC §§ 4801 et seq.) prohibiting the use of lead-based paint in residential construction or rehabilitation;

n. Intergovernmental Personnel Act of 1970 (42 USC §§ 4278-4763) regarding personnel merit systems for programs specified in Appendix A of the Federal Office of Program Management’s Standards for a Merit System of Personnel Administration (5 CFR Part 1200 et seq.);

o. Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 USC §§ 4601 et seq (PL 91-646), relating to fair treatment of persons displaced or whose property is acquired as a result of Federal or federally-assisted programs;

p. Davis-Bacon Act (40 USC §§ 3141-3148);

q. Copeland Act (40 USC § 276c and 18 USC § 874);

r. Contract Work Hours and Safety Standards Act (40 USC §§ 3702) et seq., regarding labor standards for federally- assisted construction sub-agreements;

s. National Historic Preservation Act of 1966, §106 (16 USC § 470), Executive Order 11593, and the Archaeological and Historic Preservation Act of 1974 (16 USC §§ 469a-1 et seq.) regarding historic property to the extent necessary to assist STDC and/or DSHS in complying with the Acts;

t. Trafficking Victims Protection Act of 2000, Section 106(g) (22 USC § 7104);

u. Executive Order 13513 (October 1, 2009), Federal Leadership on Reducing Text Message While Driving, October 1, 2009, if required by a federal funding source of the Contract;

v. Whistleblower Protection Enhancement Act (5 U.S.C. 2302(b)(8)) and Texas Whistleblower Act (Tex. Gov. Code Chapter 554); and

w. Requirements of any other applicable state and federal statutes, executive orders, regulations, rules and policies.

Section 2.08 Applicability of General Provisions to Interagency and Interlocal Contracts.

a. The following sections or portions of sections of these General Provisions shall not apply to Interagency Cooperation Contract (Texas Government Code 771) or Interlocal Cooperation Contracts (Texas Government Code, Chapter 791):

1. Hold Harmless and Indemnification, Section 14.17;

2. Independent Subcontractor, Section 13.05;

3. Historically Underutilized Businesses (HUB), Section 13.02 (Subcontractor, however, shall comply with HUB requirements of other statutes and rules specifically applicable to that entity);

4. Debt to State and Corporate Status, Section 4.01;

5. Application of Payment Due, Section 4.02; and

6. Article XV Claims against the Department.

b. The following additional provisions shall apply to Interlocal Cooperation Contracts:

1. Payments made by STDC to Subcontractor shall be from current revenues available from DSHS; and

2. Each party represents that it has been authorized to enter into this Contract.

Section 2.09 Civil Rights Policy and Complaints. Upon request, Subcontractor shall provide the Health and Human Services Commission (HHSC) Civil Rights Office with copies of all Subcontractor’s civil rights policies and procedures. Subcontractor shall notify HHSC’s Office of Civil Rights of any civil rights complaints received relating to performance under this Contract no more than ten (10) calendar days after Subcontractor’s receipt of the claim. Notice must be directed to –

Section 2.10 Licenses, Certifications, Permits, Registrations and Approvals. Subcontractor shall obtain and maintain all applicable licenses, certifications, permits, registrations and approvals to conduct its business and to perform the services under this Contract. Failure to obtain or any revocation, surrender, expiration, non-renewal inactivation or suspension of any such license, certification, permit, registration or approval constitutes grounds for termination of this Contract or other remedies STDC deems appropriate. Subcontractor shall ensure that all its employees, staff and volunteers maintain in active status all licenses, certifications, permits, registrations and approvals required to perform their duties under this Contract and shall prohibit any person who does not hold a current, active required license, certification, permit, registration or approval from performing services under this Contract.

Section 2.11 Funding Obligation. This Contract is contingent upon the availability of funding. If funds become unavailable through lack of appropriations, budget cuts, transfer of funds between programs or health and human services agencies, amendment of the Appropriations Act, health and human services agency consolidation, or any other disruptions of current appropriated funding for this Contract, STDC may restrict, reduce or terminate funding under this Contract. Notice of any restrictions or reduction shall include instructions and detailed information on how STDC/DSHS shall fund the services and/or goods to be procured with the restricted or reduced funds.

Section 2.12 Whistleblower Act Protection. This Contract is required to include the Whistleblower Protection Acts (see Section 2.07(v)) protections to grantees, their subgrantees and vendor subcontractors and Subcontractor must inform its employees of whistleblowers’ rights and remedies. The requirement is in effect for all grants, contracts, subgrants, and subcontractors issued beginning July 1, 2013.

Section 2.13 Federal Assistance Identification Number. Subcontractor shall include the Federal Assistance Identification (FAIN) on each subaward under a Federal award to enable reporting of expenditures according to the FAIN. As a condition of the award Federal agencies require that all recipients document the assigned FAIN on each subaward under the Federal award.

ARTICLE III SERVICES

Section 3.01 Education to Persons in Residential Facilities. If applicable, Subcontractor shall ensure that all persons, who are housed in Department licensed and/or funded residential facilities and who are twenty-two (22) years of age or younger, have access to educational services as required by Tex. Educ. Code § 29.012. Subcontractor shall notify the local education agency or local early intervention program as prescribed by Tex. Educ. Code § 29.012 not later than the third calendar day after the date a person who is twenty-two (22) years of age or younger is placed in Subcontractor’s residential facility.

Section 3.02 Disaster Services. In the event of a local, state, or federal emergency, including natural, man-made, criminal, terrorist, and/or bioterrorism events, declared as a state disaster by the Governor, or a federal disaster by the appropriate federal official, Subcontractor may be called upon to assist STDC and/or DSHS in providing services, as appropriate, in the following areas:

a. Community evacuation,

b. Health and medical assistance;

c. Assessment of health and medical needs;

d. Health surveillance;

e. Medical care personnel;

f. Health and medical equipment and supplies;

g. Client evacuation;

h. In-hospital care and hospital facility status;

i. Food, drug, and medical device safety;

j. Worker health and safety;

k. Mental health and substance use;

l. Public health information;

m. Vector control and veterinary services; and

n. Victim identification and mortuary services.

Subcontractor shall carry out disaster services in the manner most responsive to the needs of the emergency, in the most cost-effective, and least intrusive manner to Subcontractor’s primary services.

Section 3.03 Consent by Non-Parent or Other State Law to Medical Care of a Minor. Unless a federal law applies, before a Subcontractor can provide medical, dental, psychological or surgical treatment to a minor without a parental consent, informed consent must be obtained as required by Texas Family Code Chapter 32.

Section 3.04 Telemedicine/Telepsychiatry Medical Services. If applicable, the Subcontractor shall ensure that if a vendor subcontractor uses telemedicine/telepsychiatry that the services are implemented in accordance with written procedures and using protocol approved by the Subcontractor’s medical director and using equipment that complies with the equipment standards as required by the Department. Procedures for providing telemedicine service must include the following requirements:

a. Clinical oversight by the Subcontractor’s medical director or designated physician responsible for medical leadership;

b. Contraindication considerations for telemedicine use;

c. Qualified staff members to ensure the safety of the individual being served by telemedicine at the remote site;

d. Safeguards to ensure confidentiality and privacy in accordance with state and federal laws;

e. Use by credentialed licensed providers providing clinical care within the scope of their licenses;

f. Demonstrated competency in the operations of the system by all staff members who are involved in the operation of the system and provision of the services prior to initiating the protocol;

g. Priority in scheduling the system for clinical care of individuals;

h. Quality oversight and monitoring of satisfaction of the individuals served; and

i. Management of information and documentation for telemedicine services that ensures timely access to accurate information between the two sites. Telemedicine Medical Services does not include chemical dependency treatment services provided by electronic means under 25 TAC Rule § 448.911.

Section 3.05 Services and Information for Persons with Limited English Proficiency.

a. Subcontractor shall take reasonable steps to provide services and information, both orally and in writing, in appropriate languages other than English, to ensure that persons with limited English proficiency are effectively informed and can have meaningful access to programs, benefits, and activities.

b. Subcontractor shall identify and document on the client records the primary language/dialect of a client who has limited English proficiency and the need for translation or interpretation services and shall not require a client to provide or pay for the services of a translator or interpreter.

c. Subcontractor shall make every effort to avoid use of any persons under the age of eighteen (18) or any family member or friend of the client as an interpreter for essential communications with a client with limited English proficiency unless the client has requested that person and using the person would not compromise the effectiveness of services or violate the client’s confidentiality and the client is advised that a free interpreter is available.

ARTICLE IV FUNDING

Section 4.01 Debt to State and Corporate Status.

a. Pursuant to Texas Government Code §403.055, the Department and STDC shall not approve and the Texas State Comptroller shall not issue payment to Subcontractor if Subcontractor is indebted to the State for any reason, including a tax delinquency.

b. Subcontractor, if a corporation, certifies by execution of this Contract that it is current and shall remain current in its payment of franchise taxes to the State of Texas or that it is exempt from payment of franchise taxes under Texas law (Texas Tax Code §§171.001 et seq). As a corporation, this Subcontractor further certifies that it is and shall remain in good standing with the Secretary of State’s office.

c. A false statement regarding franchise tax or corporate status is a material breach of this Contract. If franchise tax payments become delinquent during the Contract term, all or part of the payments under this Contract may be withheld until Subcontractor’s delinquent franchise tax is paid in full.

Section 4.02 Application of Payment Due. Subcontractor agrees that any payments due under this Contract will be applied towards any debt of Subcontractor, including but not limited to delinquent taxes and child support that is owed to the State of Texas.

ARTICLE V PAYMENT METHODS AND RESTRICTIONS

Section 5.01 Payment Methods. Except as otherwise provided by the provisions of this Contract and the Program Attachment(s), the payment method is based on unit rate (fixed price or a specified) or fee for service (Delivery of specified unit of service) as stated in the Contract. The payment method for each Program Attachment will be one of the following method:

a. Cost Reimbursement. This payment method is based on an approved budget in the Program Attachment(s) and acceptable submission of a request for reimbursement.

Section 5.02 Invoice/Billing Submission.

a. Subcontractors shall bill the STDC in accordance with the Contract and the Program Attachment(s) in the form and format prescribed by STDC. If applicable, the Subcontractor must submit all of required documentation, reports, forms, and/or deliverables in order to receive payment from STDC.

b. Unless otherwise specified in the Contract and the Program Attachment(s) or permitted under the Third Party Payors (See Section 5.05 below), Subcontractor shall submit requests for reimbursement or payment monthly within fifteen (15) calendar days following the end of the month covered by the bill or upon special request.

c. Subcontractor shall maintain all documentation that substantiates billing submissions and make the documentation available to STDC upon request.

Section 5.03 Financial Status Reports (FSRs). Except as otherwise provided in these General Provisions or in these General Provisions or in the terms of the Contract or Program Attachment(s), if a contract has a categorical budget, Subcontractor shall submit monthly FSRs to STDC, Attn: Maribel Rodriguez, Program Manager, 1216 Santa Maria Ave., Laredo, Texas 78040, by the fifteen (15th) calendar day of the month, following the end of prior month of the Program Attachment term for STDC’s review and financial assessment or upon special request. The final FSR must be submitted to STDC no later than fifteen (15) days following the end of the applicable contract term.

Section 5.04 Final Invoice/Billing Submission. Unless otherwise provided by the STDC per special request, Subcontractor shall submit a reimbursement or payment request as a final close-out bill not later than fifteen (15) calendar days following the end of the term of the Contract and the Program Attachment for goods received and services rendered during the term. If necessary to meet this deadline, Subcontractor may submit reimbursement or payment requests electronically or by facsimile transmission. Reimbursement or payment requests received in STDC’s offices more than fifteen (15) calendar days following the end of the applicable term will not be paid. Consideration of requests for an exception will be made on a case-by-case basis, subject to the availability of funding, and only for an extenuating circumstance, such as, a catastrophic event, natural disaster, or criminal activity that substantially interferes with normal business operations, or causes damage or destruction of a place of business and/or records. A written statement describing the extenuating circumstance and the last request for reimbursement must be submitted to the STDC Accounting Department for review and approval.

Section 5.05 Third Party Payors. Except as provided in this Contract, Subcontractor shall screen all clients and may not bill STDC for services eligible for reimbursement from third party payors, who are any person or entity who has the legal responsibility for paying for all or part of the services provided, including commercial health or liability insurance carriers, Medicaid, or other federal, state, local, and private funding sources.

As applicable, the Subcontractor shall:

a. Enroll as a provider in Children’s Health Insurance Program and Medicaid if providing approved services authorized under this Contract that may be covered by those programs, and bill those programs for the covered services;

b. Provide assistance to individuals to enroll in such programs when the screening process indicates possible eligibility for such programs;

c. Allow clients who are otherwise eligible for HIV services, but cannot pay a deductible required by a third party payor, to receive services up to the amount of the deductible and to bill the Department for the deductible;

d. Not bill the STDC for any services eligible for third party reimbursement until all appeals to third party payors have been exhausted;

e. Maintain appropriate documentation from the third party payor reflecting attempts to obtain reimbursement;

f. Bill all third party payors for services provided under this Contract before submitting any request for reimbursement to STDC; and

g. Provide third party billing functions at no cost to the client.

ARTICLE VI TERMS AND CONDITIONS OF PAYMENT

Section 6.01 Prompt Payment. STDC follows 2 CFR 200.305 (3) per TxGMS which states: When the reimbursement method is used, the Federal awarding agency or pass-through entity must make payment within 30 calendar days after receipt of the billing, unless the Federal awarding agency or pass-through entity reasonably believes the request to be improper. Upon receipt of a timely, undisputed invoice pursuant to this Contract, STDC shall make payments contingent upon the availability and timely receipt of funds from the Department from which payment for contract purposes can be made. STDC will authorize the payment for services performed, being sufficiently documented and must have incurred the costs prior to claiming reimbursement and within the applicable term to be eligible for reimbursement of the STDC’s receipt of Subcontractor’s invoice, provided information on respective invoice is accurate.

Section 6.02 STDC and Department Review/Payment by STDC. Payments of invoices by the STDC shall not constitute acceptance or approval of Subcontractor’s performance nor foreclose the right to recover excessive or illegal payments. All invoices and Subcontractor’s performance are subject to review and audit by STDC and/or the Department.

Section 6.03 Withholding Payments. The STDC and the Department may withhold all or part of any payments to Subcontractor to offset reimbursement for any ineligible expenditures, disallowed costs, or overpayments that Subcontractor has not refunded to STDC or Department, or if financial status report(s) required by the STDC are not submitted by the date(s) due. STDC may take repayment from funds available under this Contract due to the Contractor for services performed or goods delivered in amounts necessary to fulfill Subcontractor’s repayment obligations.

ARTICLE VII CONFIDENTIALITY

Section 7.01 Maintenance of Confidentiality. Subcontractor must maintain the privacy and confidentiality of information and records received during or related performance of this Contract, including client records that contain Protected Health Information (PHI), and any other information that discloses confidential personal information or identifies any client served by DSHS, in accordance with applicable federal and state laws, rules and regulations, including but not limited to:

c. Texas Occupations Code, Chapters 56 and 159 and

d. Any other applicable federal and state laws, rules and regulations.

The HHS Data use Agreement (Version 8.5) at https://www.hhs.texas.gov/sites/default/files/documents/ doing-business-with-hhs/providers/long-term-care/nf/data-use-agreement.pdf is incorporated as part of the Contract and describes Subcontractor’s rights and obligations with respect to the Confidential Information and the limited purposes, for which the Subcontractor may create, receive, maintain, use, disclose or have access to Confidential Information. For the purpose of this Contract, the:

· Subcontractor does not access Confidential Information and does not have to comply with HHS Data Use Agreement (Version 8.5); or

· Subcontractor accesses Confidential Information as defined in and agrees to comply with the HHS Data Use Agreement (Version 8.5).

Section 7.02 Department Access to PHI and Other Confidential Information. Subcontractor shall cooperate with STDC and Department to allow STDC and/or Department to request, collect and receive PHI and other confidential information under this Contract, without the consent of the individual to whom the PHI relates, for funding, payment and administration of the grant program, and for purposes permitted under applicable state and federal confidentiality and privacy laws.

STDC/DSHS shall have timely access to a client or patient record in the possession of Subcontractor under authority of the Texas Health and Safety Code, Chapters 81 and 85, and the Medical Practice Act, Texas Occupations Code, Chapter 159. In such cases, DSHS shall keep confidential any information obtained from the client or patient record, as required by the Texas Health and Safety Code, Chapter 81, and Texas Occupations Code, Chapter 159.

Section 7.03 Exchange of Client-Identifying Information. Except as prohibited by other law, Subcontractor, STDC and DSHS shall exchange PHI without the consent of clients in accordance with 45 CFR § 164.504(e)(3)(i)(B), Texas Health and Safety Code § 533.009 and 25 TAC Chapter 414, Subchapter A or other applicable laws, rules or regulations.

Subcontractor shall disclose information described in Texas Health and Safety Code § 614.017(a)(2) relating to special needs offenders, to an agency described in Texas Health and Safety Code §614.017(c) upon request of that agency, unless Subcontractor documents that the information is not allowed to be disclosed under 45 CFR Part 164 or other applicable law.

Due to the sensitive and highly personal nature of HIV/AIDS-related information. This article is revised to include the following: Subcontractor will not transfer a client or patient record through any means, including electronically, to another entity or person without written consent from the client or patient, or someone authorized to act on his or her behalf, except as permited by applicable law; however, STDC may require Subcontractor to timely transfer a client or patient record to STDC and/or DSHS if the transfer is necessary to protect either the confidentiality of the record or the health and welfare of the client or patient. Subcontractor will be held to this confidentiality provision and ensure compliance.

Subcontractor shall comply with all applicable policies regarding HIV/STD Confidentiality as follows:

TB/HIV/STD and Viral Hepatitis Unit Confidential Information Security Policy https://www.dshs.texas.gov/hivstd/policy/policies/2011-01.shtm

TB/HIV/STD and Viral Hepatitis Unit Breach of Confidentiality Response Policy and Breach report form and instructions https://www.dshs.texas.gov/hivstd/policy/policies.shtm

Section 7.04 Security of Client Records. Subcontractor shall ensure that client records are managed in compliance with state and federal law relating to security and retention of medical or mental health and substance use disorder client records. STDC and/or Department may require Subcontractor to transfer original or copies of client records to STDC and/or Department, without the consent or authorization of the client, upon termination of this Contract or a Program Attachment to this Contract, as applicable, or if the care and treatment of the individual or client is transferred to another entity. Prior to providing services funded under this Contract to a client, Subcontractor shall attempt to obtain consent from the client to transfer copies of client records to another entity funded by STDC upon termination of this Contract or Program Attachment to this Contract, as applicable, or if care or treatment is transferred to another STDC funded Subcontractor.

Section 7.05 HIV/AIDS Model Workplace Guidelines. If providing direct client care, services, or programs, Subcontractor shall implement Department’s policies based on the HIV/AIDS (Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome) Model Workplace Guidelines for Businesses, State Agencies, and State Subcontractors, Policy No. 090.021, and Subcontractor shall educate employees and clients concerning HIV including Stage 3 and its related conditions, in accordance with the Texas Health & Safety Code § 85.112-114. A link to the Model Workplace Guidelines can be found at http://www.dshs.state.tx.us/hivstd/policy/policies.shtm.

ARTICLE VIII PUBLIC INFORMATION ACT

Section 8.01 Texas Public Information Act. The Subcontractor understands that STDC shall comply with the Texas Public Information Act (Texas Government Code Chapter 552).

If Subcontractor is not a state agency, institution of higher education or other government entity, then the Subcontractor is required to make any information created or exchanged with the state pursuant to a contract, which is 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 the state.

ARTICLE IX RECORDS RETENTION

Section 9.01 Records Retention.

Subcontractor must comply with the State of Texas Record Retention Schedule for HIV/STD Prevention and Care Branch Records, located at https://dshs.texas.gov/hivstd/retention/default.shtm.

a. Subcontractor shall retain and preserve records in accordance with applicable state and federal statutes, rules and regulations. At a minimum, Subcontractor shall maintain all records, including but not limited to financial records that are generated or collected by Subcontractor under the provisions of this Contract, for a period of seven

(7) years after the termination of this Contract.

b. If federal retention period for services are funded through Medicaid is more than seven (7) years, then the Subcontractor will retain the records for longer period of time.

c. Subcontractor shall retain all records pertaining to this Contract that are the subject of litigation or an audit until the litigation has ended or all questions pertaining to the audit are resolved.

d. Subcontractor shall retain medical records in accordance with 22 Texas Administrative Code § 165.1(b) or other applicable statutes, rules and regulations governing medical information.

e. Subcontractor shall include this provision concerning records retention in any subcontract it awards.

f. Subcontractor ceases business operations, it shall ensure that records relating to this Contract are securely stored and are accessible by the STDC and Department upon STDC and/or Department's request for at least seven (7) years from the date Subcontractor ceases business or from the date this Contract terminates, whichever is sooner.

g. Subcontractor shall provide, and update as necessary, the name and address of the party responsible for storage of records to the STDC and Accounting Department assigned to the Program Attachment and Contract.

ARTICLE X ACCESS, INSPECTION AND AUDIT OF RECORDS

Section 10.01 Access and Inspection. In addition to any right of access arising by operation of law, Subcontractor, and any of Subcontractor’s affiliate or subsidiary organizations or Vendor Subcontractors shall permit the STDC and/or Department or any of its duly authorized representatives, as well as duly authorized federal, state or local authorities, including the Comptroller General of the United States, the Office of the Inspector General at HHSC (OIG), and the State Auditor’s Office (SAO) or any other their successor agencies unrestricted access to and the right to examine any site where business is conducted or client services are performed, and all records which includes but is not limited to financial, client records, books, papers or documents related to this Contract. If deemed necessary by the STDC, the Department, or the OIG, for the purpose of investigation or hearing, Subcontractor shall produce original documents related to this Contract. The STDC, Department, and HHSC will have the right to audit billings both before and after payment, and all documentation that substantiates the billings.

Subcontractor shall include this provision concerning the right of access to, and examination of, sites and information related to this Contract is included in any subcontract it awards.

Section 10.02 State Auditor’s Office. Subcontractor shall, upon request, make all records, books, papers, documents, or recordings related to this Contract available for inspection, audit, or reproduction during normal business hours to any authorized representative of the STDC, the Department or SAO. The Subcontractor understands that the acceptance of funds under this Contract acts as acceptance of the authority of the SAO, or any successor agency, to conduct an audit or investigation in connection with those funds. The Subcontractor shall cooperate fully with the SAO or its successor in the conduct of the audit or investigation, including providing all records requested, and providing access to any information the SAO considers relevant to the investigation or audit. The SAO’s authority to audit funds shall apply to Contract funds disbursed by Subcontractor to its subrecipients, and the Subcontractor shall include this provision concerning the SAO’s authority to audit and the requirement to cooperate, in any subcontract the Subcontractor awards.

Section 10.03 Responding to Deficiencies. Any deficiencies identified by STDC, DSHS or HHSC upon examination of Subcontractor’s records or during an inspection of Subcontractor’s site(s) will be conveyed in writing to Subcontractor. Subcontractor shall submit, by the date prescribed by STDC or DSHS, a resolution to the deficiency in a site inspection, program or management review or financial audit to the satisfaction of STDC and/or DSHS or directed by STDC and/or DSHS, a corrective action plan to resolve the deficiency. An STDC, DSHS or HHSC determination of either an inadequate or inappropriate resolution of the findings may result in contract remedies or sanctions under the Breach of Contract and Remedies for Non-Compliance (See Article XV) of these General Provisions.

ARTICLE XI REPORTING REQUIREMENTS

Section 11.01 Child Abuse Reporting Requirement. This section applies to mental health and substance use disorder Subcontractors and Subcontractors for the following public health programs:

a. Human Immunodeficiency Virus/Sexually Transmitted Diseases (HIV/STD);

b. Family Planning;

c. Primary Health Care;

d. Maternal and Child Health; and

e. Women, Infants and Children (WIC) Nutrition Services.

Subcontractor shall comply with child abuse and neglect reporting guidelines and requirements in Texas Family Code Chapter 261 relating to investigations of reports of child abuse and neglect. This section is in addition to and does not superseded any other legal obligation of the Grantee to report child abuse.

Subcontractor shall develop, implement and enforce a written policy that includes at a minimum the Department’s Child Abuse Screening, Documenting, and Reporting Policy for Subcontractors/Providers and train all staff on reporting requirements. Subcontractor shall use the DSHS Child Abuse Reporting Form located at www.dshs.state.tx.us/childabusereporting as required by the Department. Subcontractor shall retain reporting documentation on site and make it available for inspection by STDC and/or DSHS. This section is in addition to and does not supersede any other legal obligation of the Subcontractor to report child abuse.

Section 11.02 Significant Incidents. In addition to notifying the appropriate authorities, Subcontractor shall report to the STDC and Accounting Division assigned to the Program Attachment and Contract significant incidents involving substantial disruption of Subcontractor’s program operation, or affecting or potentially affecting the health, safety or welfare of the STDC/Department funded clients or participants within seventy-two (72) hours of discovery.

Section 11.03 Litigation. Subcontractor shall notify STDC assigned to this Program Attachment and Contract of litigation related to or affecting this Contract and to which Subcontractor is a party within seven (7) calendar days of becoming aware of such a proceeding. This includes, but is not limited to an action, suit or proceeding before any court or governmental body, including environmental and civil rights matters, professional liability, and employee litigation. Notification must include the names of the parties, nature of the litigation and remedy sought, including amount of damages, if any.

Section 11.04 Contract or License Action Against the Subcontractor. Subcontractor shall notify STDC and Accounting Division assigned to the Contract and Program Attachment if Subcontractor has had any contract suspended or terminated for cause by any local, state or federal department or agency or nonprofit entity within three (3) working days of becoming aware of the suspension or termination. Such notification must include the:

a. Reason for such action;

b. Name and contact information of the local, state or federal department or agency or entity;

c. Date of the contract;

d. Date of the suspension or termination; and

e. Contract or case reference number.

If Subcontractor has surrendered its license or has had its license suspended or revoked by any local, state or federal department or agency or non-profit entity, it shall disclose this information within three (3) working days of the surrender, suspension or revocation to STDC assigned to the Program Attachment and Contract by submitting a one page description that includes the:

a. Reason(s) for such action;

b. Name and contact information of the local, state or federal department or agency, or entity;

c. Date of the license action; and

d. License or case reference number.

Section 11.05 IRS or TWC Insolvency. Subcontractor shall notify in writing the STDC assigned to the Program Attachment and Contract of Subcontractor’s insolvency, incapacity, or outstanding unpaid obligations to the Internal Revenue Service (IRS) or Texas Workforce Commission (TWC) within three (3) working days of the date of becoming aware of such determination that Subcontractor is insolvent or incapacitated, or the date Subcontractor discovered an unpaid obligation to the IRS or TWC. Subcontractor shall also notify in writing the STDC assigned to the Program Attachment and Contract of its plan to seek bankruptcy protection within three (3) working days of such action by the Subcontractor’s board of directors or governing body.

Section 11.06 Performance Malfeasance. Subcontractor shall report to STDC assigned to the Program Attachment, any knowledge of debarment, suspected fraud or unlawful activity related to performance under this Contract. Subcontractor shall make such report no later than three (3) working days from the date that the Subcontractor has knowledge or reason to believe such activity has taken place. Additionally, if this Contract is federally funded by the Department of Health and Human Services (HHS), Subcontractor shall report any credible evidence that a principal, employee, subcontractor or agency of Subcontractor, or any other person, has submitted a false claim under the False Claims Act (31 U.S.C. §3729-3733) or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving those funds. Subcontractor shall make this report to the SAO at https://sao.fraud.texas.gov/ and to the HHS Office of Inspector General at https://oig.hhs.gov/fraud/ no later than three (3) working days from the date that Contractor has knowledge or reason to believe such activity has taken place.

Section 11.07 Criminal Activity and Disciplinary Action.

a. Subcontractor affirms that no person who has an ownership or controlling interest in the organization or who is an agent or managing employee of the organization has been placed on community supervision, received deferred adjudication, is presently indicted for or has been convicted of a criminal offense related to any financial matter, federal or state program or felony sex crime.

b. Subcontractor shall immediately report in writing to STDC assigned to the Program Attachment and Contract, no later than three (3) working days from the date that the Subcontractor has knowledge or reason to believe that they or any person with ownership or controlling interest in the organization/business, or their agent, employee, contractor or volunteer that is providing services under this Contract has:

1. Engaged in any activity that could constitute a criminal offense equal to or greater than a Class A misdemeanor or grounds for disciplinary action by a state or federal regulatory authority; or

2. Been placed on community supervision, received deferred adjudication, or been indicted for or convicted of a criminal offense relating to involvement in any financial matter, federal or state program or felony sex crime.

c. Subcontractor shall not permit any person who engaged, or was alleged to have engaged, in an activity subject to reporting under this section to perform direct client services or have direct contact with clients, unless otherwise directed in writing by STDC and DSHS.

Section 11.08 Retaliation Prohibited. Subcontractor shall not retaliate against any person who reports a violation of, or cooperates with an investigation regarding, any applicable law, rule, regulation or standard to the STDC, SAO, the Department, another state agency, or any federal, state or local law enforcement official.

Section 11.09 Documentation. Subcontractor shall maintain appropriate documentation of all notices and reporting to STDC/DSHS as required under these General Provisions or this Contract.

ARTICLE XII ASSURANCES AND CERTIFICATIONS

Section 12.01 Certification. Subcontractor certifies by execution of this Contract to the following and will include such in all of its subcontractors:

a. It is not disqualified under 2 CFR §376.935 or ineligible for participation in federal or state assistance programs;

b. Neither it, nor its principals, are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntary excluded from participation in this transaction by any federal or state department or agency in accordance with 2 CFR Parts 376 and 180 (parts A-I), 45 CFR Part 76 (or comparable federal regulations);

c. It has not knowingly failed to pay a single substantial debt or a number of outstanding debts to a federal or state agency;

d. It is not subject to an outstanding judgment in a suit against Subcontractor for collection of the balance of a debt;

e. It is in good standing with all state and/or federal agencies that have a contracting or regulatory relationship with Subcontractor;

f. That no person who has an ownership or controlling interest in Subcontractor or who is an agent or managing employee of Subcontractor has been convicted of a criminal offense related to involvement in any program established under Medicare, Medicaid, or a federal block grant;

g. Neither it, nor its principals have within the three (3) year period preceding this Contract, has been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a private or public (federal, state, or local) transaction or contract under a private or public transaction, violation of federal or state antitrust statutes (including those proscribing price-fixing between competitors and bid-rigging), or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or false claims, tax evasion, obstruction of justice, receiving stolen property or any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of Subcontractor or its principals;

h. Neither it, nor its principals is presently indicted or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with the commission of any of the offenses enumerated in subsection (g) of this section; and

i. Neither it, nor its principals within a three (3) year period preceding this Contract has had one or more public transaction (federal, state or local) terminated for cause or default.

Subcontractor shall include the certifications in this Article in all subcontracts and solicitations for vendor subcontracts.