ODMR 2425-0006 EQRO Attachment D - Contract Model.pdf

SAMPLE

OHIO DEPARTMENT OF MEDICAID

CONTRACT FOR SERVICES

C-2425-0X-XXXX

This Contract is entered into between the Ohio Department of Medicaid (ODM), 50 West Town Street, Columbus, Ohio 43215, and Vendor Name, (CONTRACTOR), Vendor Street Address, City, State Zip, (hereby collectively referred to as the parties).

A. Whereas ODM issued a Request for Proposal titled RFP Title, numbered RFP Number, and dated [Month Day, Year] (RFP), which is hereby incorporated by reference.

B. Whereas the ODM proposal review team recommended for award the Proposal submitted by CONTRACTOR on [Month Day, Year] which is hereby incorporated by reference.

Now therefore, the parties agree as follows:

ARTICLE I. PURPOSE; DELIVERABLES

A. INSERT PURPOSE AND LEGAL AUTHORITY.

B. For the purposes of this Contract, “Deliverable” means any Contractor-provided products, supplies, services, reports, files, or work provided under this Contract and as described in this Article and the RFP. CONTRACTOR shall perform the Deliverables under this Contract in accordance with the RFP and the Proposal as follows:

INSERT DELIVERABLES

C. The ODM Contract Manager is ODM Contractor Manager, or successor.

D. The ODM Contract Manager may periodically communicate specific requests and instructions to CONTRACTOR concerning the performance of the Deliverables described in this Contract. CONTRACTOR agrees to comply with any requests or instructions to the satisfaction of ODM within ten (10) business days after CONTRACTOR’s receipt of the requests or instructions. ODM and CONTRACTOR expressly understand that any requests or instructions will be strictly construed to ensure the successful completion of the Deliverables described in this Contract and are not intended to amend or alter this Contract in any way. If CONTRACTOR believes that any requests or instructions would materially alter the terms and conditions of this Contract or the compensation stated hereunder, CONTRACTOR will immediately notify ODM pursuant to the notice provision of this Contract. CONTRACTOR agrees to consult with the ODM Contract Manager as necessary to ensure understanding of the Deliverables and the successful completion thereof.

E. The parties agree that the RFP and all attachments, supplements, templates, amendments, written addenda, the CONTRACTOR’s accepted Technical and Cost Proposals, authorized amendments and clarifications thereto, and the question and answers posted during the inquiry period of the RFP are hereby incorporated in this Contract by reference. [Additionally, the parties agree to incorporate the following documents:]

F. Ownership of Deliverables.

1. All Deliverables provided by CONTRACTOR under this Contract or with funds hereunder, including any documents, data, photographs and negatives, electronic reports/records, or other media, are the property of ODM, which has an unrestricted right to reproduce, distribute, modify, maintain, and use the Deliverables.

CONTRACTOR shall not obtain copyright, patent, or other proprietary protection for the Deliverables.

CONTRACTOR shall not include in any Deliverable any copyrighted matter, unless the copyright owner gives prior written approval for ODM and CONTRACTOR to use such copyrighted matter in the manner provided herein. CONTRACTOR agrees that all Deliverables will be made freely available to the public unless ODM determines that, pursuant to state or federal law, such materials are confidential or otherwise exempted from disclosure.

ODMR 2425-0006

ATTACHMENT D

Vendor Name C-2425-00-0000 Page 2 of 21

2. All Deliverables provided or produced pursuant to this Contract will be considered “works made for hire” within the meaning of copyright laws of the United States and the State of Ohio. ODM is and shall be deemed sole author of the Deliverables and sole owner of all rights therein. If any portion of the Deliverables is deemed not a “work made for hire,” or if there are any rights in the Deliverables not conveyed to ODM, CONTRACTOR agrees to, and by executing this Contract does, assign ODM all worldwide rights, title, and interest in and to the Deliverables. ODM acknowledges that its sole ownership of the Deliverables under this Contract does not affect CONTRACTOR’s right to use general concepts, algorithms, programming techniques, methodologies, or technology that CONTRACTOR developed prior to or as a result of this Contract or that are generally known and available.

3. CONTRACTOR understands that it must submit a written request to ODM and receive express written permission from ODM to include any of its own pre-existing, proprietary materials in any of the Deliverables under this Contract. ODM’s approval of the inclusion of pre-existing, proprietary materials is predicated on CONTRACTOR granting to ODM and the State of Ohio a worldwide, non-exclusive, perpetual, royalty-free license to use, modify, sell, and otherwise distribute all such materials that are included in the Deliverables under this Contract. Upon request by CONTRACTOR, ODM will incorporate into any future copies of the Deliverables under this Contract any proprietary notice(s) CONTRACTOR may reasonably require for any pre-existing, proprietary materials included in the Deliverables of this Contract. Any proprietary notices will be the minimum required by law so as not to be seen as an endorsement by ODM of or advertisement for

CONTRACTOR.

F. [UNIVERSITY RESEARCH] The Deliverables produced by CONTRACTOR under this Contract will be copyrighted in the name of CONTRACTOR. However, CONTRACTOR is required to obtain prior approval from ODM for release of any results, including preliminary and/or final results, related to funded projects or funded data under this Contract, and any documents, reports, data, photographs (including negatives), electronic reports and records, and other media under this Contract.

CONTRACTOR hereby grants to ODM a perpetual, royalty free, non-exclusive, and irrevocable license to use, reproduce, publish, modify, and distribute any Deliverable either in whole or in part, and to produce derivative works.

CONTRACTOR will assure that all products contain appropriate copyright attribution and ODM will treat Deliverable products as the intellectual property of CONTRACTOR for purposes of ORC 149.43. CONTRACTOR further reserves the right to use the Deliverables produced under this Contract for research and academic purposes, including the right to publish the work in scholarly journals or other academic publications.]

ARTICLE II. CONFIDENTIALITY OF INFORMATION

A. CONTRACTOR agrees that it will not use any information, systems, or records made available to it for any purpose other than to fulfill the obligations specified herein. CONTRACTOR specifically agrees to comply with state and federal confidentiality and information disclosure laws, rules, and regulations applicable to programs under which this Contract exists, including, but not limited to:

1. United States Code, 42 USC 1320d through 1320d-8 (HIPAA);

2. Code of Federal Regulations, 42 CFR 431.300, 431.302, 431.305, 431.306, 435.945, 45 CFR 164.502(e), 164.504(e), and 162.100;

3. Ohio Revised Code, ORC 173.20, 173.22, 1333.61, 2305.24, 2305.251, 2305.252, 3701.243, 3701.028, 4123.27, 5101.26, 5101.27, 5160.39, 5160.45, 5168.13, and 5165.88; and

4. Corresponding Ohio Administrative Code rules.

5. If Federal Tax Information is shared under this Contract, Internal Revenue Code 6103 and IRS Publication

1075.

B. CONTRACTOR agrees that any data created, received, maintained or transmitted on behalf of ODM by CONTRACTOR will be returned to ODM not later than ninety (90) calendar days following termination of this Contract and shall certify

Vendor Name C-2425-00-0000 Page 3 of 21 that no copies of source data were retained by CONTRACTOR, unless as otherwise provided for in this Contract or by law.

C. CONTRACTOR shall implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the paper and/or electronic protected personal data and health information that it creates, receives, maintains, or transmits on behalf of ODM against use or disclosure not provided for by this Contract.

D. CONTRACTOR agrees that access to the records and data provided by ODM for purposes of this Contract will be restricted to only those authorized employees, officials, subcontractors, and other persons who need it to perform duties related to this Contract. CONTRACTOR agrees to provide the ODM Contract Manager with a complete listing of any and all such persons who will have access to the above referenced records and/or data.

E. CONTRACTOR agrees that the above records and/or data and any records, reports, databases, and/or other derivative documents created from the information provided under this Contract will be stored in an area that is physically safe from access from unauthorized persons during duty and non-duty hours. Information provided under this Contract must be protected electronically to prevent unauthorized access by computer, remote access, or any other means.

CONTRACTOR expressly agrees that no records will be accessed, tested, maintained, backed up or stored outside of the United States.

F. CONTRACTOR shall assure that all persons who have access to the above referenced information will be fully apprised as to the confidential nature of the information, the safeguards required to protect the information, and the applicable civil and criminal sanctions and penalties associated with any intentional or non-intentional disclosure. No subcontractor will receive any information without a written agreement with CONTRACTOR incorporating these assurances.

G. CONTRACTOR agrees that any information provided under this Contract that is proprietary shall be held to be strictly confidential by CONTRACTOR.

H. Unless otherwise permitted under this Contract, CONTRACTOR shall not share or otherwise disclose any of the above referenced information to any third party without the express written authorization of the Director of ODM. If there is an incident of unauthorized disclosure of information, ODM must be notified in an acceptable timeframe to support regulatory requirements for breach notifications.

I. CONTRACTOR shall permit onsite inspection by the State of Ohio (including but not limited to ODM, the Auditor of the State of Ohio, the Inspector General of Ohio, the Ohio Attorney General or any duly authorized law enforcement officials) and by agencies of the United States government.

J. ODM shall prepare data pursuant to the security and encryption standards found in Ohio IT Standard ITS-SEC-01, Data Encryption and Cryptography; and NIST Special Publication 800-53. CONTRACTOR shall prepare, store, and transmit all sensitive data relating to the state of Ohio in accordance with Ohio IT Standard ITS-SEC-01, Data Encryption and Cryptography; State of Ohio Administrative Policy IT-14, Data Encryption and Securing Sensitive Data; and NIST Special Publication 800-53.

K. CONTRACTOR shall comply with Ohio Administrative Policy IT-04, Use of Internet, E-mail and Other IT Resources, as well as any associated agency policies prior to gaining access to statewide and ODM IT resources.

L. The express terms and conditions of this Article must be included in all subcontracts executed by CONTRACTOR for any and all work under this Contract.

ARTICLE III. EFFECTIVE DATE OF THE CONTRACT

A. This Contract is in effect from [Month Day, Year] or upon issuance of an approved State of Ohio purchase order, whichever is later, through June 30, 2025, unless this Contract is suspended or terminated prior to the expiration date.

This Contract may be renewed each biennium through June 30, 2027, upon satisfactory completion of Deliverables hereunder, appropriation of funds by the Ohio General Assembly, and at the sole discretion of ODM. ODM will issue

Vendor Name C-2425-00-0000 Page 4 of 21 a notice to CONTRACTOR if ODM decides to renew this Contract. CONTRACTOR shall not obligate resources in anticipation of a renewal until notice is provided.

B. It is expressly understood by both ODM and CONTRACTOR that this Contract will not be valid and enforceable until the Director of the Ohio Office of Budget and Management, first certifies, pursuant to Section 126.07 of the Ohio Revised Code (ORC), that there is a balance in the appropriation not already allocated to pay existing obligations. ODM will notify CONTRACTOR when this certification is given.

ARTICLE IV. COMPENSATION

A. The total amount payable under this Contract is [Contract Dollar Amount] Dollars ($XXX,XXX.XX). ODM shall pay an amount up to [SFY24 Dollar Amount] Dollars ($XXX,XXX.XX) for State Fiscal Year 2024 and up to [SFY25 Dollar Amount] Dollars ($XXX,XXX.XX) for State Fiscal Year 2025 expressly for the completion of the Deliverables. CONTRACTOR understands that the terms of this Contract do not provide for compensation in excess of the total amount listed in this Section. CONTRACTOR hereby waives the interest provisions of ORC 126.30.

B. Compensation will be paid pursuant to CONTRACTOR’s accepted budget [or cost proposal] as incorporated below [or as attached].

C. Fifteen percent (15%) of each invoice must be designated as a Minority Business Enterprise (MBE) holdback and must not be billed unless the CONTRACTOR provides documentation that fifteen percent (15%) of the invoice is to be paid to its MBE subcontractor(s) for goods or services provided under this Contract. Any deficiency (difference between the required minimum fifteen percent (15%) set-aside and the actual MBE percentage for that particular invoice) must be withheld and can be reconciled at the end of each fiscal year.

D. CONTRACTOR shall submit detailed invoices on a ________________ basis in one of the following manners with a copy to the Contract Manager:

E-Mail: invoices@ohio.gov (the preferred file type for email attachments is .pdf.).

Mail: Ohio Shared Services

P.O. Box 182880 Columbus, Ohio 43218-2880

Fax: 614.485.1039

CONTRACTOR agrees to use an invoice instrument to be prescribed by ODM and will include in each invoice:

1. CONTRACTOR’s name, complete address, and federal tax identification number;

2. Contract number and dates;

3. Purchase order number;

4. Amount and purpose of the invoice, including such detail as required per the compensation section of this

Contract, deliverables completed, description of services rendered, hourly rates and numbers of hours (if applicable), amount of monthly fee (if applicable), and itemized travel and other expenses if permitted by this Contract;

5. Description of Deliverables performed during the billing period;

6. Receipt of other proof of cost; and

7. Other documentation requested by ODM.

mailto:invoices@ohio.gov

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E. CONTRACTOR expressly understands that ODM will not compensate CONTRACTOR for any work performed prior to CONTRACTOR’s receipt of notice from ODM that the provisions of ORC 126.07 have been met as set forth in ARTICLE III, nor for work performed after the ending date of this Contract.

F. CONTRACTOR expressly understands that ODM does not have the ability to compensate CONTRACTOR for invoices submitted after the State of Ohio purchase order has been closed. CONTRACTOR shall submit final invoices for payment no later than ninety (90) calendar days after the ending date of this Contract. Failure to do so will be deemed a forfeiture of the remaining compensation due hereunder.

G. CONTRACTOR understands that availability of funds is contingent on appropriations made by the Ohio General Assembly or by funding sources external to the State of Ohio, such as federal funding. If the Ohio General Assembly or the external funding source fails at any time to continue funding ODM for the payments due under this Contract, this Contract will be terminated as of the date funding expires without further obligation of ODM or the State of Ohio.

H. CONTRACTOR and ODM understand that the terms of this Contract, when combined with any other payments made to or open encumbrances with CONTRACTOR during the same State Biennium, cannot establish compensation in excess of Fifty Thousand and 00/100 Dollars ($50,000.00) aggregate without prior approval from the State Controlling Board in accordance with ORC 127.16.

I. Minority Business Enterprise Set-Aside Percentage. ODM is committed to making more contracts and opportunities available to MBEs certified by the Ohio Department of Administrative Services, pursuant to Section 122.921 of the Ohio Revised Code and Rule 123:2-14.02 of the Ohio Administrative Code. MBE set-aside required percentages for are established pursuant to the RFP, while related determinations regarding payments shall be managed pursuant to this Article.

1. On invoices submitted to ODM, for each Deliverable (or other compensation methodology established in this

Contract), CONTRACTOR shall indicate the dollar amount attributed to Ohio certified MBE subcontractors, along with documentation demonstrating the MBE subcontractor activities.

a. CONTRACTOR shall report such payments monthly to ODM’s Office of Contracts and Procurement.

2. If CONTRACTOR does not attain the MBE set-aside percentage prescribed by the RFP, or another percentage approved by ODM pursuant to an approved waiver or modification, in accordance with the RFP, CONTRACTOR will forfeit the deficient percentage. ODM shall determine the difference between the required percentage and the attained percentage to determine the deficient percentage.

3. If a modification or waiver request is submitted and approved, ODM may waive or modify the holdback forfeiture. At ODM’s sole discretion, a partial or modified holdback forfeiture may be approved without the necessity of a formal amendment. If ODM determines that it is appropriate to retain a portion of the MBE holdback, ODM will advise CONTRACTOR.

4. Determination of Final Holdback Payment. Within thirty (30) days of the end of each fiscal year, CONTRACTOR shall submit an invoice with a detailed breakdown of the fiscal year’s MBE spending to evidence the required percentage was met and to justify payment of the MBE holdback. ODM shall determine, at its sole discretion, whether CONTRACTOR provided sufficient documentation and whether the MBE requirement was satisfied.

ARTICLE V. SUSPENSION AND TERMINATION, BREACH AND DEFAULT

A. This Contract will automatically terminate upon expiration of the time period in ARTICLE III, or upon completion of all

Deliverables, or once all of the compensation has been paid.

B. Notwithstanding other provisions in this Article, ODM may terminate this Contract in full or in part at will or for convenience by giving sixty (60) calendar days written notice to CONTRACTOR at ODM’s sole discretion. Upon a thirty

(30) calendar day written notice to CONTRACTOR, ODM may suspend in part or full this Contract at ODM’s sole discretion.

Vendor Name C-2425-00-0000 Page 6 of 21

C. Notwithstanding the provisions of Article V., Sections A and B., above, ODM may suspend or terminate this Contract immediately upon delivery of a written notice to CONTRACTOR if:

1. ODM loses funding as described in ARTICLE IV;

2. ODM discovers any illegal conduct by CONTRACTOR; or

3. CONTRACTOR has violated any provision of ARTICLE X.

D. Unless provided for in Sections A, B, and C of this Article, CONTRACTOR will have thirty (30) calendar days within which to cure any breach that is curable after receipt of written notice from ODM that CONTRACTOR is in breach of any of its obligations under this Contract. If CONTRACTOR fails to cure the breach within the thirty (30) calendar days after written notice or if the breach is not curable, ODM may immediately suspend or terminate this Contract. ODM may also suspend or terminate this Contract when breaches are persistent, regardless of whether they are cured within thirty (30) calendar days. For purposes of this Section, “persistent” means that ODM has notified CONTRACTOR three

(3) times in writing of CONTRACTOR’s failure to meet any of its contractual obligations. The three (3) notices do not have to relate to the same obligation or type of failure. After the third (3rd) notice, ODM may suspend or terminate this Contract without a cure period if CONTRACTOR again fails to meet any contractual obligation. At the sole discretion of ODM, certain instances of breach may require a shorter cure period than the thirty (30) calendar days generally applicable in this Section. In such instances, ODM will include in its notice of breach the shorter cure period deemed appropriate.

E. CONTRACTOR, upon receiving notice of suspension or termination, will:

1. Cease performance of the suspended or terminated Deliverables;

2. Take all necessary steps to limit disbursements and minimize costs including, but not limited to, suspending or terminating all contracts and subgrants related to suspended or terminated Deliverables;

3. Prepare and furnish a report to ODM, as of the date the notice of termination or suspension was received, that describes the status of all Deliverables and includes the results accomplished and the conclusions reached through Deliverables;

4. Return all records in their native format relating to cost, work performed, supporting documentation for invoices submitted to ODM, and copies of all materials produced under or pertaining to this Contract; and

5. Perform any other tasks ODM reasonably requires.

F. In the event of suspension or termination under this Article, ODM will, upon receipt of a proper invoice from CONTRACTOR, determine the amount of any unpaid Contract funds due to CONTRACTOR for Deliverables performed before CONTRACTOR received notice of termination or suspension. In order to determine the amount due to CONTRACTOR, ODM will base its calculations on the payment method described in ARTICLE IV and any funds previously paid by or on behalf of ODM. ODM will not be liable for any further claims submitted by CONTRACTOR.

G. If ODM terminates this Contract for any reason provided in this Article, except for termination for convenience or at will pursuant to Section B or termination for loss of funding pursuant to Section C, ODM will be entitled to utilize another contractor to complete the Deliverables of this Contract on any commercially reasonable terms as ODM and the covering contractor may agree. In this event, CONTRACTOR will be liable to ODM for all costs related to covering the project to the extent that such costs, when combined with payments already made to CONTRACTOR prior to termination, exceed the costs that ODM would have incurred under this Contract. CONTRACTOR’s liability under this Section is in addition to any other remedies available to ODM pursuant to this Contract.

H. Upon CONTRACTOR’s breach or default of provisions, obligations, or duties embodied in this Contract or any term of an award, a federal statute or regulation, an assurance, a State plan or application, a notice of award, or other applicable rule, ODM reserves the right to exercise any administrative, contractual, equitable, or legal remedies

Vendor Name C-2425-00-0000 Page 7 of 21 available without limitation. Any waiver by ODM of an occurrence of breach or default is not a waiver of subsequent occurrences. If ODM or CONTRACTOR fails to perform any obligation under this Contract and the other party subsequently waives the failure, the waiver will be limited to that particular occurrence of a failure and will not be deemed to waive other failures that may occur. Waiver by ODM will not be effective unless it is in writing signed by the ODM Director.

ARTICLE VI. NOTICES

A. ODM and CONTRACTOR agree that communication regarding Deliverables, scope of work, invoice or billing questions, or other routine instructions will be between CONTRACTOR and the identified ODM Contract Manager.

B. Notices to ODM from CONTRACTOR that concern changes to CONTRACTOR’s principal place of operation, billing address, legal name, federal tax identification number, mergers or acquisitions, corporate form, excusable delay, termination, bankruptcy, assignment, any notice pursuant to ARTICLE X, and/or any other formal notice regarding this Contract will be sent to the ODM Chief Legal Counsel, Office of Chief Legal, 50 West Town Street, 5th floor, Columbus, Ohio 43215.

C. Notices to CONTRACTOR from ODM concerning termination, suspension, option to renew, breach, default, or other formal notices regarding this Contract will be sent to CONTRACTOR’s representative at the address appearing on the signature page of this Contract.

D. All notices will be in writing and will be deemed given when received. All notices must be sent using a delivery method that documents actual delivery to the appropriate address herein indicated (e.g., certified mail).

ARTICLE VII. RECORDS, DOCUMENTS AND INFORMATION

CONTRACTOR agrees that all records, documents, writings, and other information, created or used pursuant to this Contract will be treated according to the following terms, and that the terms will be included in any subcontracts executed for the performance of the Deliverables under this Contract:

A. CONTRACTOR agrees that any media produced pursuant to this Contract or acquired with Contract funds will become the property of ODM. This includes all documents, reports, data, photographs (including negatives), and electronic reports and records. ODM will maintain the unrestricted right to reproduce, distribute, modify, maintain, and use the media in any way ODM deems appropriate. CONTRACTOR further agrees not to seek or obtain copyright, patent or other proprietary protection for any materials or items produced under this Contract. CONTRACTOR understands that all materials and items produced under this Contract will be made freely available to the public unless ODM determines that certain materials are confidential under federal or state law.

A. [UNIVERSITY RESEARCH] ODM agrees that any media (including documents, reports, data, photographs, and electronic reports and records) produced pursuant to this Contract or acquired with Contract funds will become the property of CONTRACTOR. However, CONTRACTOR is required to obtain prior approval from ODM for release of any results, including preliminary and/or final results, related to funded projects or funded data under this Contract, and any documents, reports, data, photographs (including negatives), electronic reports and records, and other media under this Contract. Additionally, CONTRACTOR hereby grants to ODM a perpetual, royalty free, non-exclusive, and irrevocable license to use, reproduce, publish, modify, and distribute any such media.

B. All ODM information that is classified as public or private under Ohio law will be treated as such by CONTRACTOR.

Should the nature of any information be in question, ODM will determine whether the information is public or private.

CONTRACTOR will restrict the use of any information, systems, or records ODM provides to the specific Deliverables of this Contract. CONTRACTOR and its employees agree to be bound by the same standards and rules of confidentiality that apply to employees of ODM and the State of Ohio. CONTRACTOR agrees that the terms of this Section will be included in any subcontract executed by CONTRACTOR for work under this Contract.

C. CONTRACTOR information that is proprietary and has been specifically identified by CONTRACTOR as proprietary will be held as confidential by ODM. Proprietary information is information that would put CONTRACTOR at a competitive disadvantage in CONTRACTOR’s market place and trade if it were made public. ODM reserves the right to require

Vendor Name C-2425-00-0000 Page 8 of 21 reasonable evidence of CONTRACTOR’s assertion of the proprietary nature of any information. The provisions of this Section are not self-executing. CONTRACTOR must demonstrate that any information claimed as proprietary meets the definition of “trade secrets” found at ORC 1333.61.

D. For audit purposes only, all records relating to cost, work performed, supporting documentation for invoices submitted to ODM, and copies of all materials produced under or pertaining to this Contract will be retained by CONTRACTOR and will be made available for audit by state and federal government entities that include, but are not limited to, ODM, the Ohio Auditor of State, the Ohio Inspector General and all duly authorized law enforcement officials. The records and materials will be retained and made available for a minimum of three (3) years after CONTRACTOR receives the last payment pursuant to this Contract. If an audit or similar action is initiated during this time period, CONTRACTOR will retain the records until the action is concluded and all issues are resolved, or until the end of the three-year period if the action is resolved prior to the end of the three-year period, unless otherwise directed below in Section F. If applicable, CONTRACTOR must meet the requirements of the federal Office of Management and Budget (OMB) Omni-Circular, 2 CFR Part 200.104. CONTRACTOR acknowledges, in accordance with ORC 149.43, that financial records related to the performance of services under this Contract are presumptively deemed public records.

E. CONTRACTOR shall, for each subcontract in excess of Two Thousand, Five Hundred and 00/100 Dollars ($2,500.00), require its subcontractors to agree to the same provisions of this Article. CONTRACTOR may not artificially divide contracts with its subcontractors to avoid requiring subcontractors to agree to these provisions. These provisions do not apply to contracts where federal funds are used and the federal government requires audits of all subcontracts regardless of the amount of the contract.

F. All records relating to cost, work performed, supporting documentation for invoices submitted to ODM, and copies of all materials produced under or pertaining to this Contract will be retained by CONTRACTOR in accordance to the appropriate records retention schedule. The appropriate records retention schedule for the work performed under this Contract is [INSERT # of years, no less than 3 year] years, unless another State of Ohio records retention schedule applies. If any records are destroyed prior to the date as determined by the appropriate records retention schedule, CONTRACTOR agrees to pay all costs associated with any cause, action or litigation arising from such destruction.

G. CONTRACTOR agrees to retain all records in accordance to any litigation holds that are provided to them by ODM, and actively participate in the discovery process if required to do so, at no additional charge. Litigation holds may require CONTRACTOR to keep the records longer than the approved records retention schedule. CONTRACTOR will be notified by ODM when the litigation hold ends and retention can resume based on the approved records retention schedule.

If CONTRACTOR fails to retain the pertinent records after receiving a litigation hold from ODM, CONTRACTOR agrees to pay all costs associated with any cause, action or litigation arising from such destruction.

H. CONTRACTOR hereby agrees to current and ongoing compliance with Title 42, Sections 1320d through 1320d-8 of the United States Code (USC) and the implementing regulations found at Title 45, Parts 164.502(e) and 164.504(e) of the Code of Federal Regulations (CFR) regarding disclosure of Protected Health Information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). CONTRACTOR further agrees to include the terms of this section in any subcontracts that may be executed pursuant to this Contract.

ARTICLE VIII. AMENDMENT AND ASSIGNMENT

A. This writing constitutes the entire agreement between ODM and CONTRACTOR with respect to all matters herein.

Only a writing signed by both parties may amend this Contract. However, this Contract is governed by and construed in accordance with all applicable state or federal laws and regulations; and the Contract is automatically amended to conform to any changes in laws or regulations without the necessity for written amendment. Any written amendment to this Contract will be prospective in nature.

B. CONTRACTOR agrees not to assign any interest in this Contract nor transfer any interest in the Contract without the prior written approval of ODM. CONTRACTOR will submit any requests for approval of assignments and transfers to the ODM Contract Manager at least ten (10) business days prior to the desired effective date. CONTRACTOR understands that any assignments and transfers will be subject to any conditions ODM deems necessary and that no

Vendor Name C-2425-00-0000 Page 9 of 21 approval by ODM will be deemed to provide for any ODM obligation that exceeds the Contract amount specified in ARTICLE IV of this Contract.

ARTICLE IX. BUSINESS ASSOCIATE REQUIREMENTS UNDER HIPAA

A. The definitions contained in this section are derived from federal law. Should there be any conflict between the meanings assigned in this Contract and the meanings defined in applicable federal law (even in the event of future amendments to law that create such conflict), the definitions found in federal law will prevail.

1. General Definitions. The following terms used in this Contract shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information and Use.

2. Specific Definitions.

a. HIPAA means the Health Insurance Portability and Accountability Act of 1996, the American Recovery and Reinvestment Act of 2009 (ARRA) and any other applicable federal statute or regulation.

b. HIPAA Rules shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

c. Covered Entity means a health plan, a health care clearinghouse, or health care provider under 45

CFR 160.103.

d. Business Associate means a person or entity that, on behalf of the Covered Entity, maintains, performs, or assists in the performance of a function or activity that involves the use or disclosure of “Protected Health Information” under 45 CFR 160.103.

e. Protected Health Information (PHI) means individually identifiable information including but not limited to the past, present or future physical or mental health or condition of an individual, provision of health care to an individual, or the past, present or future payment for health care provided to an individual, as more fully defined under 45 CFR 164.501 and any amendments thereto, received or sent on behalf of ODM.

B. CONTRACTOR acknowledges that ODM is a Covered Entity under HIPAA. CONTRACTOR further acknowledges that it is a Business Associate of ODM, and, in carrying out the work described in this Contract, agrees to comply with all of the following provisions:

1. Permitted Uses and Disclosures. CONTRACTOR will not use or disclose PHI except as provided in this Contract or as otherwise required under HIPAA regulations or other applicable law.

2. Safeguards. CONTRACTOR will implement sufficient safeguards, and comply with Subpart C of 45 CFR Part 164 pertaining to electronic PHI to prevent the use or disclosure of PHI other than as provided for under this Contract. Safeguards will be implemented for all paper and electronic PHI created, received, maintained, or transmitted on behalf of ODM.

3. Reporting of Disclosures. CONTRACTOR shall immediately report to ODM the following:

a. Any use or disclosure of PHI, or other confidential information which is not in compliance with the terms of this Contract or applicable law of which it becomes aware; and

b. Any security incident of which it becomes aware. For purposes of this Contract, “security incident” means the unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.

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Immediately following discovery of a reportable security incident, CONTRACTOR shall notify ODM of the existence and nature of the incident as understood at that time. CONTRACTOR shall immediately investigate the incident and within 24 hours of discovery shall provide to ODM the following information: (i) the nature of the disclosure, (ii) PHI used or disclosed, (iii) the individual(s) who made and received the disclosure, (iv) any corrective action taken to prevent further disclosure(s) and mitigate the effect of the current disclosure(s), and (v) any other information reasonably requested by ODM.

Reporting and other communications made to ODM under this section must be made to ODM’s HIPAA privacy officer and Office of Legal Counsel at: PrivacyOffice@medicaid.ohio.gov and Mcdlegal@medicaid.ohio.gov.

If the improper use or disclosure, or security incident involves Federal Tax Information, Social Security Administration information, or if the incident could result in compromise of other connected systems, then CONTRACTOR shall also immediately attempt to notify the Privacy Officer via telephone at 614-752-5012 and the Chief Legal Counsel at 614-752-2576.

Failure to adhere to these notification requirements may constitute violations(s) of applicable federal and state laws and regulations and may constitute just cause for immediate termination of this Contract.

4. Mitigation Procedures. CONTRACTOR agrees to coordinate with ODM to determine specific actions that will be required of the Business Associates for mitigation, to the extent practical, of the breach. These actions will include notification to the appropriate individuals, entities, or other authorities. Notification or communication to any media outlet must be approved, in writing, by ODM prior to any such communication being released. CONTRACTOR will report all of its mitigation activity to ODM and shall preserve all relevant records and evidence.

5. Incidental Costs. CONTRACTOR shall bear the sole expense of all costs to mitigate any harmful effect of any breaches or security incidents of which CONTRACTOR has knowledge which are directly caused by the use or disclosure of protected health information by CONTRACTOR in violation of the terms of this Contract. These costs will include, but are not limited to, the cost of investigation, remediation, and assistance to the affected individuals, entities or other authorities.

6. Agents and Subcontractors. CONTRACTOR, in compliance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2) as applicable, will ensure that all its agents and subcontractors that create, receive, maintain, or transmit PHI from or on behalf of CONTRACTOR and/or ODM agree to have, in a written agreement, the same restrictions, conditions, and requirements that apply to CONTRACTOR with respect to the use or disclosure of PHI.

7. Accessibility of Information. CONTRACTOR will make available to ODM such information as ODM may require to fulfill its obligations to provide access to, provide a copy of any information or documents with respect to PHI pursuant to HIPAA and regulations promulgated by the United States Department of Health and Human Services, including, but not limited to, 45 CFR 164.524 and 164.528 and any amendments thereto.

8. Amendment of Information. CONTRACTOR shall make any amendment(s) to PHI as directed by, or agreed to by, ODM pursuant to 45 CFR 164.526, or take other steps as necessary to satisfy ODM’s obligations under 45 CFR 164.526. In the event that CONTRACTOR receives a request for amendment directly from an individual, agent, or subcontractor, CONTRACTOR will notify ODM prior to making any such amendment(s).

CONTRACTOR’s authority to amend information is explicitly limited to information created by CONTRACTOR.

9. Accounting for Disclosure. CONTRACTOR shall maintain and make available to ODM or individuals requesting the information, as appropriate, records of all disclosures of PHI in a Designated Record Set as necessary to satisfy ODM’s obligations under 45 CFR 164.528. For every disclosure the record will include, at a minimum, the name of the individual who is the subject of the disclosure, the date of the disclosure, reason for the disclosure if any, and the name and address of the recipient to which the protected health information was disclosed.

mailto:PrivacyOffice@medicaid.ohio.gov mailto:Mcdlegal@medicaid.ohio.gov

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10. Obligations of Department. When CONTRACTOR is to carry out an obligation of ODM under Subpart E of 45 CFR 164, CONTRACTOR agrees to comply with all applicable requirements of Subpart E that would apply to ODM in the performance of such obligation.

11. Access to Books and Records. CONTRACTOR shall make available to ODM and to the Secretary of the U.S.

Department of Health and Human Services any and all internal practices, documentation, books, and records related to the use and disclosure of PHI received from ODM, or created or received on behalf of ODM. Such access is for the purposes of determining compliance with the HIPAA Rules.

12. Material Breach. In the event of material breach of CONTRACTOR’s obligations under this Article, ODM may immediately terminate this Contract as set forth in ARTICLE V, Section B. Termination of this Contract will not affect any provision of this Contract, which, by its wording or its nature, is intended to remain effective and to continue to operate after termination.

13. Return or Destruction of Information. Upon termination of this Contract and at the request of ODM, CONTRACTOR shall return to ODM or destroy all PHI in CONTRACTOR’s possession stemming from this Contract as soon as possible but no later than ninety (90) days, and shall not keep copies of the PHI except as may be requested by ODM or required by law, or as otherwise allowed for under this Contract. If CONTRACTOR, its agent(s), or subcontractor(s) destroy any PHI, then CONTRACTOR will provide to ODM documentation evidencing such destruction. Any PHI retained by CONTRACTOR will continue to be extended the same protections set forth in this Section, HIPAA regulations, and this Contract for as long as it is maintained.

14. Agency Indemnification. CONTRACTOR hereby indemnifies ODM and agrees to hold ODM harmless from and against any and all losses, expense, damage, or injury that ODM may sustain as a result of, or arising out of, CONTRACTOR, or its agent's or subcontractor's, unauthorized use or disclosure of PHI.

15. Survival. These provisions will survive the termination of this Contract.

ARTICLE X. CONTRACTOR CERTIFICATION OF COMPLIANCE WITH SPECIAL CONDITIONS

By executing this Contract, CONTRACTOR hereby affirms current and continued compliance with each condition listed in this Article. CONTRACTOR's certification of compliance with each of these conditions is considered a material representation of fact upon which ODM relied in entering into this Contract:

A. If at any time, CONTRACTOR is not in compliance with the conditions affirmed in this Section, ODM will consider this

Contract void ab initio and will deliver written notice to CONTRACTOR. Any funds the State of Ohio paid CONTRACTOR for work performed before CONTRACTOR received notice that the Contract is void ab initio will be immediately repaid or the State of Ohio may commence an action for recovery against CONTRACTOR.

1. Debarment Requirements. CONTRACTOR affirms that neither CONTRACTOR nor any of its principals or subcontractors, is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in transactions by any governmental agency. CONTRACTOR also affirms that within three (3) years preceding this Contract neither CONTRACTOR nor any of its principals:

a. Have been convicted of, or had a civil judgment rendered against them for commission of fraud or other criminal offense in connection with obtaining, attempting to obtain, or performing a federal, state, or local public transaction or contract under a public transaction; for violation of federal or state antitrust statutes; for commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements; or for receiving stolen property; or

b. Are presently indicted or otherwise criminally or civilly charged by a government entity (Federal, State, or local) for the commission of any of the offenses listed in this paragraph and have not had any federal, state, or local public transactions terminated for cause or default.

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2. Qualifications to Conduct Business. CONTRACTOR affirms that it has all of the approvals, licenses, or other qualifications needed to conduct business in Ohio and all are current. If at any time during the Contract period CONTRACTOR, for any reason, becomes disqualified from conducting business in the State of Ohio, CONTRACTOR will immediately notify ODM in writing and will immediately cease performance of all Deliverables.

3. Unfair Labor Practices. CONTRACTOR affirms that neither CONTRACTOR nor its principals are on the most recent list established by the Ohio Secretary of State, pursuant to ORC 121.23, which would identify CONTRACTOR as having more than one unfair labor practice contempt of court finding.

4. Finding for Recovery. CONTRACTOR affirms that neither CONTRACTOR nor its principals or subcontractors, is subject to a finding for recovery under ORC 9.24, or it has taken the appropriate remedial steps required, or otherwise qualifies under ORC 9.24 to contract with the State of Ohio.

B. If at any time CONTRACTOR is not in compliance with the conditions affirmed in this Section, ODM may immediately suspend or terminate this Contract and will deliver written notice to CONTRACTOR. CONTRACTOR shall be entitled to compensation, upon submission of a proper invoice per ARTICLE IV, only for work performed during the time CONTRACTOR was in compliance with the provisions of this Section. Any funds paid by the State of Ohio for work performed during a period when CONTRACTOR was not in compliance with this Section will be immediately repaid or the State of Ohio may commence an action for recovery against CONTRACTOR.

1. Fair Labor Standards and Employment Practices. CONTRACTOR certifies that it is in compliance with all applicable federal and state laws, rules, and regulations governing fair labor and employment practices.

2. Civil Rights Laws.

a. CONTRACTOR, its officers, employees, members, and subcontractors hereby affirm current and ongoing compliance with all federal civil rights laws including:

(1) Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352);

(2) Title VI of the Civil Rights Act of 1964 (42 USC 2000d, et seq.);

(3) The Americans with Disabilities Act of 1990 (42 USC 12101, et seq.) and Section 504 of the

Rehabilitation Act of 1973; and

(4) The Age Discrimination Act of 1975 (42 USC 6101, et seq.).

b. In carrying out this Contract, CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, color, religion, gender, national origin, military status, disability, age, genetic information, or sexual orientation, in making any of the following employment decisions: hiring, layoff, termination, transfer, promotion, demotion, rate of compensation, and eligibility for in-service training programs.

c. CONTRACTOR agrees that it will not participate in, condone or tolerate any form of sexual harassment against any employee, subcontractor, or other person or entity with which it is associated in performance of this Contract, which is considered a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, the Ohio Revised Code 4112.02, Ohio Administrative Code 123:1-49, the Anti-Discrimination Policy in State Government Executive Order 2019-05D, or state agency policy.

d. CONTRACTOR agrees to post notices affirming compliance with all applicable federal and state non-discrimination laws in conspicuous places accessible to all employees and applicants for employment.

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e. CONTRACTOR shall incorporate the foregoing requirements of this Section 2 in all of its subgrants or subcontracts for any of the work prescribed herein.

3. Ethics and Conflicts of Interest Laws.

a. CONTRACTOR certifies that by executing this Contract, it has reviewed, knows and understands the State of Ohio’s ethics and conflict of interest laws. CONTRACTOR further agrees that it will not engage in any action(s) inconsistent with Ohio ethics laws or any Executive Orders.

b. CONTRACTOR certifies, by executing this Contract, that no party who holds a position listed or described in ORC 3517.13 (I) or (J), has made, while in his/her current position, one or more personal monetary contributions in excess of One Thousand and 00/100 Dollars ($1,000.00) to the current Governor or to the Governor’s campaign committee when he was a candidate for office within the previous two (2) calendar years. ORC 3517.13 does not apply to professional associations organized under ORC Chapter 1785.

c. CONTRACTOR agrees to refrain from promising or giving to any ODM employee anything of value that could be construed as having a substantial and improper influence upon the employee with respect to the employee’s duties. CONTRACTOR further agrees that it will not solicit any ODM employee to violate ORC 102.03, 2921.42, or 2921.43.

d. CONTRACTOR agrees that CONTRACTOR, its officers, employees, and members have not, nor will they acquire any interest, whether personal, business, direct, or indirect, that is incompatible, in conflict with, or would compromise the discharge and fulfillment of CONTRACTOR’s functions and responsibilities under this Contract.