P09 - SOW - (Customer).pdf

DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK

PURPOSE:

The purpose of the facility is to be organized, staffed and administered to provide adequate care for each person admitted. The objective of Contract Nursing Home is to restore, maintain and promote the physical, social, and emotional health of a client/patient referred to Unihealth North Augusta Community Nursing Home 1200 Talisman Dr. North Augusta, S.C. 29841 (803) 278-2170.

DESCRIPTION OF SERVICES:

1. Contract Nursing Home Services shall include group and individual services as follows:

a. Daily Nursing Services to monitor vital signs as needed; to observe the functional level of the patient/client and note any changes in the physical condition of each individual; to supervise the administration of medications and observe for possible reactions; to tech positive health measures;

encourage self-care and build knowledge of illness/recovery process; to coordinate treatment plans with the physician, therapist and other involved service delivery agencies; to perform treatments ordered by a patient’s/client’s physician; to supervise the development and implementation of a care plan; to appropriately report to the patient’s/client’s physician and/or VA any changes in the patient’s/client’s condition as within the Contract Nursing Home Facility’s scope of practice. Contract Nursing Home facility shall provide the VA with their “Scope of Practice”. Medical supplies will be the responsibility of the patient/client.

b. Training in Activities of Daily Living includes restorative treatment involving the use of sensory integration exercises, perceptual motor techniques, and skill practice and training activities of daily living.

This also can include support for individual desire for sobriety (alcohol/drug abuse lifestyle) if appropriate.

c. Supervision of Personal Care including assistance with dressing, personal hygiene, grooming, ambulation, eating and toileting.

d. Planned Therapeutic Activities to stimulate mental activity, communication and self-expression.

These include reality orientation exercises, crafts, music, educational and cultural programs, games, social integration, exercise, etc.

e. Information and Referral related to other services in the area and coordination with other agencies as required meeting the patient’s/client’s needs.

f. Three Meal and a Snack per day shall be provided. Special diets are available.

2. Prior to patient/client enrollment, a registered nurse shall be available to meet with the patient/client to assess health history functional level and support system, to determine if the ADHC is suited to the patient’s/client’s needs.

3. Contract Nursing Home services, consisting of a minimum of 24 hours not including transportation time.

4. The Contract Nursing Home facility shall be operating 24 hours a day.

B.5 SPECIAL CONTRACT REQUIREMENTS

1. Contract Nursing Home will be furnished to beneficiaries of whom such care is specifically authorized by the Department of Veterans Affairs. It is understood that the type of patient/client to be cared for under this contract will receive these services as a substitute for institutionalization. The purposes of providing Contract Nursing Home are: to enable functionally impaired individuals to reside in supportive home environments rather than in nursing home care facilities; to facilitate the return of older veterans to their home and coordinate long term care there by reducing readmissions to hospitals and nursing homes; to maintain the older veterans at the highest level of functioning possible; to improve the quality of life for the participants among their peers; and to provide support for the family and other care givers of older veterans. The care provided may include physician services, nursing, social work services, occupational or physical therapy, assistance with activities of daily living, activity therapy, case management, nutrition services including meals and transportation.

The Contract Nursing Home Program will meet the VA Standards for Contract Nursing Home as promulgated in 38 CFR 17.51c through 17.51e.

a. Unless specifically excluded in this contract, the per diem rate established will include the services listed above and will also include all services or supplies normally provided other patients/clients by the facility without extra charge.

b. If the VA Medical Center and the Contract Nursing Home Program agree that the VA shall provide services under 38 CFR 17.51f, the agreement will be incorporated into the contract and either the per diem rate will be reestablished or direct payment made to the United States to reflect the full cost of the VA’s contribution.

2. Contract Nursing Home provider shall maintain current licensure from the Georgia Department of Health and Environmental Control as a Contract Nursing Home Facility for Adults.

3. Health care shall be supervised by a Registered Nurse who may also perform treatments ordered by the patients/client’s physician. Medical supplies for routine procedures will be the responsibility of the patients/client. A medical worker is on staff.

4. The institution shall have the capability (including enough qualified staff) to provide:

(i) Services of a registered nurse;

(ii) Assistance for daily living including bathing, feeding, toileting, ambulation, and transferring;

(iii) Case management;

(iv) Nutrition services including counseling, regular meals, and special diets;

(v) Recreational services;

(vi) Transportation to and from home or decide for may be provided; and

(vii) The maintenance of individual patient/client records.

5. Staffing: Sufficient staff in number and position qualifications to carry out the policies, responsibilities and programs of the facility. As a minimum, there must be a full-time Administrative Director staff member or his/her designee on duty on the premises or residing at the facility and available for emergency

Inspection teams are expected to evaluate the Contractor’s ability to consistently assure the presence of staff capable for providing those services required under the terms of the Contract.

6. Absences of the patient/client from the Contract Nursing Home facility will not be reimbursed.

7. Contract Nursing Home provider shall maintain a record keeping and reporting system which establishes a patient/client profile in support of the units of Contract Nursing Home services delivered, based on VA’s authorization. This shall include the following:

a. Units of service delivered and submission of claims to VA for reimbursement.

b. Individual patient/client service plans.

c. Physicians orders including medication.

d. Individual patient/client care plans.

e. Essential individual identifying data including sociocultural assessment, reasons for referral.

f. Periodic re-evaluation of patient’s/client’s progress/status

g. Final summary of patient’s/client’s progress/status upon termination of services which includes reasons for leaving, future and follow-up information.

h. Periodic reports shall be provided to VA as required by the Contracting Officer.

8. Prior to acceptance of a patient/client for Contract Nursing Home services, the following requirements will be satisfied:

a. The patient/client will have a physical examination within 60 days prior to enrollment. The physicians report will include recommendations regarding limitations of activities, special diet, medications (name, type, dosage and whether it can be self-administered) and other considerations to determine whether appropriate services are available.

b. The physical and mental condition of a patient/client will not confine him/her to bed.

9. Contract Nursing Home provider has the right to refuse acceptance of or terminate services to a patient/client who poses a threat to the safety or health of themselves, other patients/clients or staff. If this should occur, VA will be notified.

10. It is agreed that VA may readily have access to all records concerning the patient’s/client’s care at the Contract Nursing Home facility. It is agreed that the duly authorized representatives of VA will provide follow-up supervision visits to patients/clients referred to Contract Nursing Home provider. It is understood that these visits do not substitute or relieve Contract Nursing Home provider in any way of the responsibility for the daily care and medical treatment of the patient/client.

11. It is understood that the patient/client may be provided Contract Nursing Home at the expense of the VA for a period not more than that stated in the authorization received from VA, unless an extension of the authorization is provided in writing by the appropriate VA representative.

12. It is agreed that Contract Nursing Home provider will submit to VA a monthly invoice (in arrears) for patients/clients receiving care under this contract.

13. Contract Nursing Home provider warrants that all applicable laws, including NFPA 101, state and local codes are being complied with and that there are no recommendations of fire officials that have not be resolved.

14. Privacy Act – Notification: This procurement action requires the Contractor to do one or more of the following: design, develop, or operate a system of records on individuals to accomplish an agency function in accordance with the Privacy Act of 1974. Public Law 93-579, December 31, 1974 (5 USC 552A) and applicable agency regulations. Violations of the act may involve the imposition of criminal penalties.

a. The Contractor agrees: (1) to comply with the Privacy Act of 1974 and the rules and regulations issued pursuant to the act in the design, development or operation of any system of records on individuals in order to accomplish an agency function when the contract specifically identifies (i) the system or systems of records and (ii) the work to be performed by the Contractor in terms of any on combination of the following: (a) design, development, or operation work, (2) include the Privacy Act notification contained in this contract in every solicitation and subcontract when the statement in the proposed subcontract requires the design, development or operation of a system of records on individuals who accomplish an agency function, and (3) to include the clause, including this paragraph (3) in all subcontracts awarded pursuant to this contract which requires the design, development or operation of such a system or records.

b. In the event of violation of the act, a civil action may be brought against the agency involved where the violation concerns the design, development or operation of a system of records on individuals to accomplish an agency function and criminal penalties may be imposed upon the officers or employees of the agency where the violation concerns the operation of a system of records on individuals to accomplish an agency function. For the purposes of the Act, when the contract is for the operation of a system of records on individuals to accomplish an agency function the Contractor is employee(s) of the agency.

15. The Contract Nursing Home Program agrees and warrants that it does not maintain nor provide dual or segregated patient/client facilities that are segregated based on race, creed, color or national origin. The ADHC Program may neither require such segregated use by written or oral policies nor tolerate such use by local custom. The term facilities shall include but not be limited to rooms, wards, sections, eating areas, drinking fountains, and entrances.

16. It is agreed that the Department of Veterans Affairs will have the right to inspection of the Contract Nursing Home Program and all appurtenances by an authorized representative(s) designated by the Department of Veterans Affairs, to determine whether acceptable standards are maintained and that adequate care is being rendered.

17. The Contract Nursing Home agrees to accept referral of and to provide all services specified in this contract for any person determined eligible by the Coordinator, Contract Nursing Home Program, regardless of the race, color, religion, sex or national origin (unless otherwise indicated services are ordered). In addition, the Contract Nursing Home Program warrants that subcontracting will not be resorted to as a means of circumventing this provision.

18. It is agreed that the VA may readily have access to all medical records concerning the veterans care in the Contract Nursing Home Program. It is agreed that duly authorized representative of the VA will provide follow-up supervision visits to veterans placed to assure the continuity of care and to assist in the veteran’s transition back into the community. It is understood that these visits do not substitute nor relieve the Contract Nursing Home Program in any way of the responsibility for the daily care and medical treatment of the veterans. Upon discharge or death of the patient/client, medical records on all VA beneficiaries will be retained by the Contract Nursing Home Program for a period of at least three years following termination of care at VA expense.

19. It is understood that the beneficiary may be provided Contract Nursing Home at the expense of the Department of Veterans Affairs for a period not more than that stated in the treatment plan received from the Department of Veterans Affairs, unless an extension of the authorization is provided in writing by the appropriate Department of Veterans Affairs Medical Center.

20. It is agreed that the Contract Nursing Home Program will submit a report each month on the attendance, medical functional and psychosocial status of beneficiaries receiving care under the contract to the Department of Veterans Affairs (if requested) along with a monthly invoice for beneficiaries receiving care under the contract.

21. It is understood that payments made by the Department of Veterans Affairs under this contract will constitute the total cost of Contract Nursing Home. The Contract Nursing Home provider agrees that no additional charges will be billed to the beneficiary or his family, either by the Contract Nursing Home Program or any third party furnishing services or supplies required for such care, unless and until specific prior authorization in writing is obtained from the Department of Veterans Affairs facility that authorized placement.

22. It is impossible to determine the exact or estimated amount that will be expended under the contract.

It is understood that no obligation will be incurred by the Department of Veterans Affairs under this contract until authorizations are issued for Contract Nursing Home specific beneficiaries. The Department of Veterans Affairs agrees to make payment on a timely basis for services rendered in accordance with such authorizations upon receipt of billings submitted by the Contract Nursing Home Program at the completion of each month’s services. If a beneficiary is admitted to and discharged from the Contract Nursing Home Program on the same calendar day, payment will be made for one day. Invoices shall be submitted to the address stated on Page 2 of the contract.

23. It is agreed that the facility will notify the VA immediately when a medical emergency requiring prehospitalization occurs. It is agreed that the veteran will be readmitted to an appropriate VA facility.

When such readmission is not feasible because of the nature of the emergency, it is agreed that hospitalization in a non-Federal hospital may be accomplished provided VA authorization is obtained. If hospitalization of a non-emergency nature is required, it is agreed that readmission to the VA hospital will be accomplished promptly.

24. In the event a beneficiary receiving facility care under this contract dies, the facility will promptly notify the VA office authorizing admission and immediately assemble, inventory, and safeguard the patient’s/client’s personal effects. The funds, deposits, and effects left by VA patients upon the premises of the facility shall be delivered by the facility to the person entitled thereto under the laws currently governing the facility for making disposition of funds and effects left by patients/clients, unless the beneficiary died without leaving a will, heirs, or next of kin capable of inheriting. When disposition has been made, the itemized inventory with a notation as to the disposition of the funds and effects will be immediately forwarded to the VA office. Should a deceased patient/client leave no will, heirs, or next of kin, his personal property and funds wherever located vests in and becomes the property of the United States in trust? In these cases, the facility will forward an inventory of any such property and funds in its possession to the appropriate VA office and will hold them (except articles of clothing necessary for proper burial) under safeguard until instructions are received from the VA concerning disposition.

25. TERMINATION OF SERVICES: VA reserves the right to remove any or all VA patients/clients from the ADHC facility at any time when it is determined to be in the best interest of the VA or the patient/client, without additional costs to the Government.

26. 90 DAY MUTUAL TERMINATION: This contract will remain enforce during the period stated, unless terminated at the request of either party after 90 days’ notice in writing. To the extent that this contract is so terminated, the VA will be liable only for payment provisions of this contract for services rendered prior to the effective date of termination.

27. RECORDS MANAGEMENT LANGUAGE FOR CONTRACTS:

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

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

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

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

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

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

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

The Government Agency owns the rights to all electronic information (electronic data, electronic information systems, electronic databases, etc.) and all supporting

28.

APPENDIX B

VA ACQUISITION REGULATION SOLICITATION PROVISION AND CONTRACT

CLAUSE

NOTE: This clause will undergo official rule making by the Office of Acquisitions and Logistics. The below language will be submitted for public review through the Federal Register. The final wording of the clause may be changed from what is outlined below based on public review and comment. Once approved, the final language in the clause can be obtained from the Office of Acquisitions and Logistics Programs and Policy.

1. SUBPART 839.2 – INFORMATION AND INFORMATION TECHNOLOGY

SECURITY REQUIREMENTS

839.201 Contract clause for Information and Information Technology Security:

a. Due to the threat of data breach, compromise or loss of information that resides on either VA-owned or contractor-owned systems, and to comply with Federal laws and regulations, VA has developed an Information and Information Technology Security clause to be used when VA sensitive information is accessed, used, stored, generated, transmitted, or exchanged by and between VA and a contractor, subcontractor or a third party in any format (e.g., paper, microfiche, electronic or magnetic portable media).

b. In solicitations and contracts where VA Sensitive Information or Information Technology will be accessed or utilized, the CO shall insert the clause found at 852.273-75, Security Requirements for Unclassified Information Technology Resources.

2. 852.273-75 - SECURITY REQUIREMENTS FOR UNCLASSIFIED INFORMATION

TECHNOLOGY RESOURCES (INTERIM- OCTOBER 2008)

As prescribed in 839.201, insert the following clause:

The contractor, their personnel, and their subcontractors shall be subject to the Federal laws, regulations, standards, and VA Directives and Handbooks regarding information and information system security as delineated in this contract.

(END OF CLAUSE)

VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY LANGUAGE

FOR INCLUSION INTO CONTRACTS, AS APPROPRIATE

1. GENERAL

Contractors, contractor personnel, subcontractors, and subcontractor personnel shall be subject to the same Federal laws, regulations, standards, and VA Directives and Handbooks as VA and VA personnel regarding information and information system security.

2. ACCESS TO VA INFORMATION AND VA INFORMATION SYSTEMS

a. A contractor/subcontractor shall request logical (technical) or physical access to VA information and VA information systems for their employees, subcontractors, and affiliates only to the extent necessary to perform the services specified in the contract, agreement, or task order.

b. All contractors, subcontractors, and third-party servicers and associates working with VA information are subject to the same investigative requirements as those of VA appointees or employees who have access to the same types of information. The level and process of background security investigations for contractors must be in accordance with VA Directive and Handbook 0710, Personnel Suitability and Security Program. The Office for Operations, Security, and Preparedness is responsible for these policies and procedures.

c. Contract personnel who require access to national security programs must have a valid security clearance. National Industrial Security Program (NISP) was established by Executive Order 12829 to ensure that cleared U.S. defense industry contract personnel safeguard the classified information in their possession while performing work on contracts, programs, bids, or research and development efforts.

The Department of Veterans Affairs does not have a Memorandum of Agreement with Defense Security Service (DSS). Verification of a Security Clearance must be processed through the Special Security Officer located in the Planning and National Security Service within the Office of Operations, Security, and Preparedness.

d. Custom software development and outsourced operations must be located in the U.S. to the maximum extent practical. If such services are proposed to be performed abroad and are not disallowed by other VA policy or mandates, the contractor/subcontractor must state where all non-U.S.

services are provided and detail a security plan, deemed to be acceptable by VA, specifically to address mitigation of the resulting problems of communication, control, data protection, and so forth. Location within the U.S. may be an evaluation factor.

e. The contractor or subcontractor must notify the Contracting Officer immediately when an employee working on a VA system or with access to VA information is reassigned or leaves the contractor or subcontractor’s employ. The Contracting Officer must also be notified immediately by the contractor or subcontractor prior to an unfriendly termination.

a. Information made available to the contractor or subcontractor by VA for the performance or administration of this contract or information developed by the contractor/subcontractor in performance or administration of the contract shall be used only for those purposes and shall not be used in any other way without the prior written agreement of the VA. This clause expressly limits the contractor/subcontractor's rights to use data as described in Rights in Data

- General, FAR 52.227-14(d) (1).

b. VA information should not be co-mingled, if possible, with any other data on the contractors/subcontractor’s information systems or media storage systems in order to ensure VA requirements related to data protection and media sanitization can be met. If co-mingling must be allowed to meet the requirements of the business need, the contractor must ensure that VA’s information is returned to the VA or destroyed in accordance with VA’s sanitization requirements. VA reserves the right to conduct on-site inspections of contractor and subcontractor IT resources to ensure data security controls, separation of data and job duties, and destruction/media sanitization procedures follow VA directive requirements.

c. Prior to termination or completion of this contract, contractor/subcontractor must not destroy information received from VA, or gathered/created by the contractor in the course of performing this contract without prior written approval by the VA. Any data destruction done on behalf of VA by a contractor/subcontractor must be done in accordance with National Archives and Records Administration (NARA) requirements as outlined in VA Directive 6300, Records and Information Management and its Handbook 6300.1 Records Management Procedures, applicable VA Records Control Schedules, and VA Handbook 6500.1, Electronic Media Sanitization. Self-certification by the contractor that the data destruction requirements above have been met must be sent to the VA Contracting Officer within 30 days of termination of the contract.

d. The contractor/subcontractor must receive, gather, store, back up, maintain, use, disclose and dispose of VA information only in compliance with the terms of the contract and applicable Federal and VA information confidentiality and security laws, regulations and policies. If Federal or VA information confidentiality and security laws, regulations and policies become applicable to the VA information or information systems after execution of the contract, or if NIST issues or updates applicable FIPS or Special Publications (SP) after execution of this contract, the parties agree to negotiate in good faith to implement the information confidentiality and security laws, regulations and policies in this contract.

e. The contractor/subcontractor shall not make copies of VA information except as authorized and necessary to perform the terms of the agreement or to preserve electronic information stored on contractor/subcontractor electronic storage media for restoration in case any electronic equipment or data used by the contractor/subcontractor needs to be restored to an operating state. If copies are made for restoration purposes, after the restoration is complete, the copies must be appropriately destroyed.

f. If VA determines that the contractor has violated any of the information confidentiality, privacy, and security provisions of the contract, it shall be sufficient grounds for VA to withhold payment to the contractor or third party or terminate the contract for default or terminate for cause under Federal Acquisition Regulation (FAR) part 12.

g. If a VHA contract is terminated for cause, the associated BAA must also be terminated and appropriate actions taken in accordance with VHA Handbook 1600.01, Business Associate Agreements.

Absent an agreement to use or disclose protected health information, there is no business associate relationship.

h. The contractor/subcontractor must store, transport, or transmit VA sensitive information in an encrypted form, using VA-approved encryption tools that are, at a minimum, FIPS 140-2 validated.

i. The contractor/subcontractor’s firewall and Web services security controls, if applicable, shall meet or exceed VA’s minimum requirements. VA Configuration Guidelines are available upon request.

j. Except for uses and disclosures of VA information authorized by this contract for performance of the contract, the contractor/subcontractor may use and disclose VA information only in two other situations: (i) in response to a qualifying order of a court of competent jurisdiction, or (ii) with VA’s prior written approval. The contractor/subcontractor must refer all requests for, demands for production of, or inquiries about, VA information and information systems to the VA contracting officer for response.

k. Notwithstanding the provision above, the contractor/subcontractor shall not release VA records protected by Title 38 U.S.C. 5705, confidentiality of medical quality assurance records and/or Title 38 U.S.C. 7332, confidentiality of certain health records pertaining to drug addiction, sickle cell anemia, alcoholism or alcohol abuse, or infection with human immunodeficiency virus. If the contractor/subcontractor is in receipt of a court order or other requests for the above mentioned information, that contractor/subcontractor shall immediately refer such court orders or other requests to the VA contracting officer for response.

l. For service that involves the storage, generating, transmitting, or exchanging of VA sensitive information but does not require C&A or an MOU-ISA for system interconnection, the contractor/subcontractor must complete a Contractor Security Control Assessment (CSCA) on a yearly basis and provide it to the COTR.

4. INFORMATION SYSTEM DESIGN AND DEVELOPMENT

a. Information systems that are designed or developed for or on behalf of VA at non-VA facilities shall comply with all VA directives developed in accordance with FISMA, HIPAA, NIST, and related VA security and privacy control requirements for Federal information systems. This includes standards for the protection of electronic PHI, outlined in 45 C.F.R. Part 164, Subpart C, information and system security categorization level designations in accordance with FIPS 199 and FIPS 200 with implementation of all baseline security controls commensurate with the FIPS 199 system security categorization (reference Appendix D of VA Handbook 6500, VA Information Security Program).

During the development cycle a Privacy

Impact Assessment (PIA) must be completed, provided to the COTR, and approved by the VA Privacy Service in accordance with Directive 6507, VA Privacy Impact Assessment.

b. The contractor/subcontractor shall certify to the COTR that applications are fully functional and operate correctly as intended on systems using the VA Federal Desktop Core Configuration (FDCC), and the common security configuration guidelines provided by NIST or the VA. This includes Internet Explorer 7 configured to operate on Windows XP and Vista (in Protected Mode on Vista) and future versions, as required.

c. The standard installation, operation, maintenance, updating, and patching of software shall not alter the configuration settings from the VA approved and FDCC configuration. Information technology staff must also use the Windows Installer Service for installation to the default “program files” directory and silently install and uninstall.

d. Applications designed for normal end users shall run in the standard user context without elevated system administration privileges.

e. The security controls must be designed, developed, approved by VA, and implemented in accordance with the provisions of VA security system development life cycle as outlined in NIST Special Publication 800-37, Guide for Applying the Risk Management Framework to Federal Information Systems, VA Handbook 6500, Information Security Program and VA Handbook 6500.5, Incorporating Security and Privacy in System Development Lifecycle.

f. The contractor/subcontractor is required to design, develop, or operate a System of Records

Notice (SOR) on individuals to accomplish an agency function subject to the Privacy Act of 1974, (as amended), Public Law 93-579, December 31, 1974 (5 U.S.C. 552a) and applicable agency regulations.

Violation of the Privacy Act may involve the imposition of criminal and civil penalties.

g. The contractor/subcontractor agrees to:

(1) Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulations issued under the Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies:

(a) The Systems of Records (SOR); and

(b) The design, development, or operation work that the contractor/subcontractor is to perform;

(2) Include the Privacy Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the redesign, development, or operation of a SOR on individuals that is subject to the Privacy Act; and

(3) Include this Privacy Act clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a SOR.

h. In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a SOR on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a SOR on individuals to accomplish an agency function. For purposes of the Act, when the contract is for the operation of a SOR on individuals to accomplish an agency function, the contractor/subcontractor is considered to be an employee of the agency.

(1) “Operation of a System of Records” means performance of any of the activities associated with maintaining the SOR, including the collection, use, maintenance, and dissemination of records.

(2) “Record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and contains the person’s name, or identifying number, symbol, or any other identifying particular assigned to the individual, such as a fingerprint or voiceprint, or a photograph.

(3) “System of Records” means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

i. The vendor shall ensure the security of all procured or developed systems and technologies, including their subcomponents (hereinafter referred to as “Systems”), throughout the life of this contract and any extension, warranty, or maintenance periods. This includes, but is not limited to workarounds, patches, hotfixes, upgrades, and any physical components (hereafter referred to as Security Fixes) which may be necessary to fix all security vulnerabilities published or known to the vendor anywhere in the Systems, including Operating Systems and firmware. The vendor shall ensure that Security Fixes shall not negatively impact the Systems.

j. The vendor shall notify VA within 24 hours of the discovery or disclosure of successful exploits of the vulnerability which can compromise the security of the Systems (including the confidentiality or integrity of its data and operations, or the availability of the system). Such issues shall be remediated as quickly as is practical, but in no event longer than 5 days.

k. When the Security Fixes involve installing third party patches (such as Microsoft OS patches or Adobe Acrobat), the vendor will provide written notice to the VA that the patch has been validated as not affecting the Systems within 10 working days. When the vendor is responsible for operations or maintenance of the Systems, they shall apply the Security Fixes within days.

l. All other vulnerabilities shall be remediated as specified in this paragraph in a timely manner based on risk, but within 60 days of discovery or disclosure. Exceptions to this paragraph (e.g. for the convenience of VA) shall only be granted with approval of the contracting officer and the VA Assistant Secretary for Office of Information and Technology.

5. INFORMATION SYSTEM HOSTING, OPERATION, MAINTENANCE, OR USE

a. For information systems that are hosted, operated, maintained, or used on behalf of VA at non-

VA facilities, contractors/subcontractors are fully responsible and accountable for ensuring compliance with all HIPAA, Privacy Act, FISMA, NIST, FIPS, and VA security and privacy directives and handbooks. This includes conducting compliant risk assessments, routine vulnerability scanning, system patching and change management procedures, and the completion of an acceptable contingency plan for each system. The contractor’s security control procedures must be equivalent, to those procedures used to secure VA systems. A Privacy Impact Assessment (PIA) must also be provided to the COTR and approved by VA Privacy Service prior to operational approval. All external Internet connections to VA’s network involving VA information must be reviewed and approved by VA prior to implementation.

b. Adequate security controls for collecting, processing, transmitting, and storing of Personally

Identifiable Information (PII), as determined by the VA Privacy Service, must be in place, tested, and approved by VA prior to hosting, operation, maintenance, or use of the information system, or systems by or on behalf of VA. These security controls are to be assessed and stated within the PIA and if these controls are determined not to be in place, or inadequate, a Plan of Action and Milestones (POA&M) must be submitted and approved prior to the collection of PII.

c. Outsourcing (contractor facility, contractor equipment or contractor staff) of systems or network operations, telecommunications services, or other managed services requires certification and accreditation (authorization) (C&A) of the contractor’s systems in accordance with VA Handbook 6500.3, Certification and Accreditation and/or the VA OCS Certification Program Office.

Government-owned (government facility or government equipment) contractor-operated systems, third party or business partner networks require memorandums of understanding and interconnection agreements (MOU-ISA) which detail what data types are shared, who has access, and the appropriate level of security controls for all systems connected to VA networks.

d. The contractor/subcontractor’s system must adhere to all FISMA, FIPS, and NIST standards related to the annual FISMA security controls assessment and review and update the PIA. Any deficiencies noted during this assessment must be provided to the VA contracting officer and the ISO for entry into VA’s POA&M management process. The contractor/subcontractor must use VA’s POA&M process to document planned remedial actions to address any deficiencies in information security policies, procedures, and practices, and the completion of those activities. Security deficiencies must be corrected within the timeframes approved by the government.

Contractor/subcontractor procedures are subject to periodic, unannounced assessments by VA officials, including the VA Office of Inspector General. The physical security aspects associated with contractor/subcontractor activities must also be subject to such assessments. If major changes to the system occur that may affect the privacy or security of the data or the system, the C&A of the system may need to be reviewed, retested and re-authorized per VA Handbook 6500.3. This may require reviewing and updating all the documentation (PIA, System Security Plan, Contingency Plan). The Certification Program Office can provide guidance on whether a new C&A would be necessary.

e. The contractor/subcontractor must conduct an annual self-assessment on all systems and outsourced services as required. Both hard copy and electronic copies of the assessment must be provided to the COTR. The government reserves the right to conduct such an assessment using government personnel or another contractor/subcontractor. The contractor/subcontractor must take appropriate and timely action (this can be specified in the contract) to correct or mitigate any weaknesses discovered during such testing, generally at no additional cost.

f. VA prohibits the installation and use of personally-owned or contractor/subcontractor- owned equipment or software on VA’s network. If non-VA owned equipment must be used to fulfill the requirements of a contract, it must be stated in the service agreement, SOW or contract. All of the security controls required for government furnished equipment (GFE) must be utilized in approved other equipment (OE) and must be funded by the owner of the equipment. All remote systems must be equipped with, and use, a VA-approved antivirus (AV) software and a personal (host-based or enclave based) firewall that is configured with a VA- approved configuration. Software must be kept current, including all critical updates and patches. Owners of approved OE are responsible for providing and maintaining the anti-viral software and the firewall on the non-VA owned OE.

g. All electronic storage media used on non-VA leased or non-VA owned IT equipment that is used to store, process, or access VA information must be handled in adherence with VA Handbook 6500.1, Electronic Media Sanitization upon: (i) completion or termination of the contract or (ii) disposal or return of the IT equipment by the contractor/subcontractor or any person acting on behalf of the contractor/subcontractor, whichever is earlier. Media (hard drives, optical disks, CDs, back-up tapes, etc.) used by the contractors/subcontractors that contain VA information must be returned to the VA for sanitization or destruction or the contractor/subcontractor must self-certify that the media has been disposed of per 6500.1 requirements. This must be completed within 30 days of termination of the contract.

h. Bio-Medical devices and other equipment or systems containing media (hard drives, optical disks, etc.) with VA sensitive information must not be returned to the vendor at the end of lease, for trade-in, or other purposes. The options are:

(1) Vendor must accept the system without the drive;

(2) VA’s initial medical device purchase includes a spare drive which must be installed in place of the original drive at time of turn-in; or

(3) VA must reimburse the company for media at a reasonable open market replacement cost at time of purchase.

(4) Due to the highly specialized and sometimes proprietary hardware and software associated with medical equipment/systems, if it is not possible for the VA to retain the hard drive, then;

(a) The equipment vendor must have an existing BAA if the device being traded in has sensitive information stored on it and hard drive(s) from the system are being returned physically intact; and

(b) Any fixed hard drive on the device must be non-destructively sanitized to the greatest extent possible without negatively impacting system operation. Selective clearing down to patient data folder level is recommended using VA approved and validated overwriting technologies/methods/tools.

Applicable media sanitization specifications need to be pre- approved and described in the purchase order or contract.

(c) A statement needs to be signed by the Director (System Owner) that states that the drive could not be removed and that (a) and (b) controls above are in place and completed. The ISO needs to maintain the documentation.

6. SECURITY INCIDENT INVESTIGATION

a. The term “security incident” means an event that has, or could have, resulted in unauthorized access to, loss or damage to VA assets, or sensitive information, or an action that breaches VA security procedures. The contractor/subcontractor shall immediately notify the COTR and simultaneously, the designated ISO and Privacy Officer for the contract of any known or suspected security/privacy incidents, or any unauthorized disclosure of sensitive information, including that contained in system(s) to which the contractor/subcontractor has access.

b. To the extent known by the contractor/subcontractor, the contractor/subcontractor’s notice to

VA shall identify the information involved, the circumstances surrounding the incident (including to whom, how, when, and where the VA information or assets were placed at risk or compromised), and any other information that the contractor/subcontractor considers relevant.

c. With respect to unsecured protected health information, the business associate is deemed to have discovered a data breach when the business associate knew or should have known of a breach of such information. Upon discovery, the business associate must notify the covered entity of the breach.

Notifications need to be made in accordance with the executed business associate agreement.

d. In instances of theft or break-in or other criminal activity, the contractor/subcontractor must concurrently report the incident to the appropriate law enforcement entity (or entities) of jurisdiction, including the VA OIG and Security and Law Enforcement. The contractor, its employees, and its subcontractors and their employees shall cooperate with VA and any law enforcement authority responsible for the investigation and prosecution of any possible criminal law violation(s) associated with any incident. The contractor/subcontractor shall cooperate with VA in any civil litigation to recover VA information, obtain monetary or other compensation from a third party for damages arising from any incident, or obtain injunctive relief against any third party arising from, or related to, the incident.

7. LIQUIDATED DAMAGES FOR DATA BREACH

a. Consistent with the requirements of 38 U.S.C. §5725, a contract may require access to sensitive personal information. If so, the contractor is liable to VA for liquidated damages in the event of a data breach or privacy incident involving any SPI the contractor/subcontractor processes or maintains under this contract.

b. The contractor/subcontractor shall provide notice to VA of a “security incident” as set forth in the Security Incident Investigation section above. Upon such notification, VA must secure from a non- Department entity or the VA Office of Inspector General an independent risk analysis of the data breach to determine the level of risk associated with the data breach for the potential misuse of any sensitive personal information involved in the data breach. The term 'data breach' means the loss, theft, or other unauthorized access, or any access other than that incidental to the scope of employment, to data containing sensitive personal information, in electronic or printed form, that results in the potential compromise of the confidentiality or integrity of the data. Contractor shall fully cooperate with the entity performing the risk analysis. Failure to cooperate may be deemed a material breach and grounds for contract termination.

c. Each risk analysis shall address all relevant information concerning the data breach, including the following:

(1) Nature of the event (loss, theft, unauthorized access);

(2) Description of the event, including:

(a) date of occurrence;

(b) data elements involved, including any PII, such as full name, social security number, date of birth, home address, account number, disability code;

(3) Number of individuals affected or potentially affected;

(4) Names of individuals or groups affected or potentially affected;

(5) Ease of logical data access to the lost, stolen or improperly accessed data in light of the degree of protection for the data, e.g., unencrypted, plain text;

(6) Amount of time the data has been out of VA control;

(7) The likelihood that the sensitive personal information will or has been compromised (made accessible to and usable by unauthorized persons);

(8) Known misuses of data containing sensitive personal information, if any;

(9) Assessment of the potential harm to the affected individuals;

(10) Data breach analysis as outlined in 6500.2 Handbook, Management of Security and Privacy Incidents, as appropriate; and

(11) Whether credit protection services may assist record subjects in avoiding or mitigating the results of identity theft based on the sensitive personal information that may have been compromised.

d. Based on the determinations of the independent risk analysis, the contractor shall be responsible for paying to the VA liquidated damages in the amount of $250 per affected individual to cover the cost of providing credit protection services to affected individuals consisting of the following:

(1) Notification;

(2) One year of credit monitoring services consisting of automatic daily monitoring of at least 3 relevant credit bureau reports;

(3) Data breach analysis;

(4) Fraud resolution services, including writing dispute letters, initiating fraud alerts and credit freezes, to assist affected individuals to bring matters to resolution;

(5) One year of identity theft insurance with $20,000.00 coverage at $0 deductible; and

(6) Necessary legal expenses the subjects may incur to repair falsified or damaged credit records, histories, or financial affairs.

8. SECURITY CONTROLS COMPLIANCE TESTING

On a periodic basis, VA, including the Office of Inspector General, reserves the right to evaluate any or all of the security controls and privacy practices implemented by the contractor under the clauses contained within the contract. With 10 working-days’ notice, at the request of the government, the contractor must fully cooperate and assist in a government-sponsored security controls assessment at each location wherein VA information is processed or stored, or information systems are developed, operated, maintained, or used on behalf of VA, including those initiated by the Office of Inspector General. The government may conduct a security control assessment on shorter notice (to include unannounced assessments) as determined by VA in the event of a security incident or at any other time.

9. TRAINING

a. All contractor employees and subcontractor employees requiring access to VA information and VA information systems shall complete the following before…