HomeMy WebLinkAboutRES 14-002RESOLUTION NO.14 -002
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Council hereby approves the execution of a supplemental amendment to
the existing contract with Emergicon, LLC, substantially in the form attached hereto as
Exhibit "A" and made a part hereof for all purposes, for the purpose of ensuring that
protected health information created, received, maintained, or transmitted on behalf of the
City of Beaumont will be appropriately safeguarded in compliance with the applicable
provisions of HIPAA.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7th day of
January, 2014.
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- Mayor Pro Tem Wright -
City of Beaumont
Business Associate Agreement
Between City of Beaumont
and Emergicon, LLC
This Business Associate Agreement ( "Agreement ") between City of Beaumont and Emergicon, LLC is
executed to ensure that Emergicon, LLC will appropriately safeguard protected health information
( "PHI ") that is created, received, maintained, or transmitted on behalf of City of Beaumont in
compliance with the applicable provisions of Public Law 104 -191 of August 21, 1996, known as the
Health Insurance Portability and Accountability Act of 1996, Subtitle F — Administrative
Simplification, Sections 261, et seq., as amended ( "HIPAA "), and with Public Law 111 -5 of February
17, 2009, known as the American Recovery and Reinvestment Act of 2009, Title XII, Subtitle D —
Privacy, Sections 13400, et seq., the Health Information Technology and Clinical Health Act, as
amended (the "HITECH Act").
A. General Provisions
1. Meaning of Terms. The terms used in this Agreement shall have the same meaning as
those terms defined in HIPAA.
2. Regulatory References. Any reference in this Agreement to a regulatory section
means the section currently in effect or as amended.
3. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit
compliance with HIPAA.
B. Obligations of Business Associate
Emergicon, LLC, agrees that it will:
1. Not use or further disclose PHI other than as permitted or required by this Agreement or
as required by law;
2. Use appropriate safeguards and comply, where applicable, with the HIPAA Security Rule
with respect to electronic protected health information ( "e- PHI ") and implement
appropriate physical, technical and administrative safeguards to prevent use or disclosure
of PHI other than as provided for by this Agreement;
3. Report to City of Beaumont any use or disclosure of PHI not provided for by this
Agreement of which it becomes aware, including any security incident (as defined in the
HIPAA Security Rule) and any unsecured PHI shall be reported to City of Beaumont
without unreasonable delay but in no case later than 60 days after discovery of the
breach;
EXHIBIT "A"
4. in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any
subcontractors that create, receive, maintain, or transmit PHI on behalf of Emergicon, LLC
agree to the same restrictions, conditions, and requirements that apply to Emergicon, LLC
with respect to such information;
5. Make PHI in a designated record set available to City of Beaumont and to an individual
who has a right of access in a manner that satisfies City of Beaumont's obligations to
provide access to PHI in accordance with 45 CFR §164.524 within 30 days of a request;
6. Make any amendment(s) to PHI in a designated record set as directed by City of
Beaumont, or take other measures necessary to satisfy City of Beaumont's obligations
under 45 CFR §164.526;
7. Maintain and make available information required to provide an accounting of disclosures
to City of Beaumont or an individual who has a right to an accounting within 60 days and
as necessary to satisfy City of Beaumont's obligations under 45 CFR §164.528
8. To the extent that Emergicon, LLC is to carry out any of City of Beaumont's obligations
under the HIPAA Privacy Rule, Emergicon, LLC shall comply with the requirements of the
Privacy Rule that apply to City of Beaumont when it carries out that obligation;
9. Make its internal practices, books, and records relating to the use and disclosure of PHI
received from, or created or received by Emergicon, LLC on behalf of City of Beaumont,
available to the Secretary of the Department of Health and Human Services for purposes of
determining Emergicon, LLC and City of Beaumont's compliance with HIPAA and the HITECH
Act;
10. Restrict the use or disclosure of PHI if City of Beaumont e notifies Emergicon, LLC of any
restriction on the use or disclosure of PHI that City of Beaumont has agreed to or is
required to abide by under 45 CFR §164.522;
11. If City of Beaumont is subject to the Red Flags Rule (found at 16 CFR §681.1 et seq.),
Emergicon, LLC agrees to assist City of Beaumont in complying with its Red Flags
Ruleobligations by: (a) implementing policies and procedures to detect relevant Red Flags
(as defined under 16 C.F.R. §681.2); (b) taking all steps necessary to comply with the
policies and procedures of City of Beaumont's Identity Theft Prevention Program; (c)
ensuring that any agent or third party who performs services on its behalf in connection
with covered accounts of City of Beaumont agrees to implement reasonable policies and
procedures designed to detect, prevent, and mitigate the risk of identity theft; and (d)
alerting City of Beaumont of any Red Flag incident (as defined by the Red Flag Rules) of
which it becomes aware, the steps it has taken to mitigate any potential harm that may
have occurred, and provide a report to City of Beaumont of any threat of identity theft as
a result of the incident.
C. Permitted Uses and Disclosures by Business Associate
The specific uses and disclosures of PHI that may be made by Emergicon, LLC on behalf of
City of Beaumont include:
1. The preparation :of invoices to patients, carriers, insurers and others responsible for
payment or reimbursement of the services provided by City of Beaumont to its patients;
2. Preparation of reminder notices and documents pertaining to collections of overdue
accounts;
3. The submission of supporting documentation to carriers, insurers and other payers to
substantiate the healthcare services provided by City of Beaumont to its patients or to
appeal denials of payment for the same;
4. Other uses or disclosures of PHI as permitted by HIPAA necessary to perform the services
that Emergicon, LLC has been engaged to perform on behalf of City of Beaumont.
D. Termination
1. City of Beaumont may terminate this Agreement if City of Beaumont determines that
Emergicon, LLC has violated a material term of the Agreement.
2. If either party knows of a pattern of activity or practice of the other party that
constitutes a material breach or violation of the other party's obligation under this
Agreement, that party shall take reasonable steps to cure the breach or end the
violation, as applicable, and, if such steps are unsuccessful, terminate the Agreement if
feasible.
i. Upon termination of this Agreement for any reason, Emergicon, LLC
shall return to City of Beaumont or destroy all PHI received from City of
Beaumont, or created, maintained, or received by Emergicon, LLC on
behalf of City of Beaumont that Emergicon, LLC still maintains in any
form. Emergicon, LLC shall retain no copies of the PHI. If return or
destruction is infeasible, the protections of this Agreement will extend
to such PHI.
Agreed to this day of . 2013
City of Beaumont
Signature:
Title:
Date:
Emergicon, LLC ) ��
Signature:
Title: (2, C
Date:—/,? S ?GI
0
EMERGiCON SERVICE AGREEMENT
This Service Agreement (this "Agreement") is entered into by and between Enzergicon,
LLC, a Texas corporation C'Emergicon" ), and the City of Beaumont, the provider of emergency
medical and/or ambulance transportation services set forth on the signature page hereto (the
"Provider ").
RECITALS
WHEREAS, Texas Government Code, Chapter 791, authorizes the formulation of
interlocal agreements between and among local governments; and
WHEREAS, Emeraicon has a contract with the Town of Flower Mound, Texas signed
August 6, 2007;
WHEREAS, Emergicon provides medical control services, billing and collections
services, continuing education programs, continuous quality improvement services and other
clinical support services (the "Services ") to fire departments, ambulance providers, and other
medical emergency services;
WHEREAS, Provider, as part or all of its overall activities, provides emergency and/or
non - emergency medical and ambulance services, including emergency medical responses, and
other patient encounters and/or patient, ambulance transportation (the "Ambulatory Services ");
and
WHEREAS, Provider is desirous of obtaining the Services of Emergicon.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties hereto agree as follows:
ARTicLE ONE
TERM AND TER UNAnON
1.01 fern. Subject to the terms and conditions set forth herein and except as provided
in Section 1.02, the initial term of this Agreement shall be for aperiod of two (2) years from the
date of this Agreement (such initial term, together with all extensions thereof shall be referred to
herein as the "Term ") This Agreement shall automatically renew at the end of the current Term .
for a successive two -year Tem. unless either party gives urritten notice of its intention not to
renew sixty (60) days before expiration of the current Term.
1.02 Termination. Notwithstanding any provision of this Agreement to the contrary,
this Agreement may be terminated by either parry, without cause and v ithout liability (except for
continuing obligations during such period), upon thirty (30) days advance written notice to the
other party.
1.03 Obligations During Notice Period. During the 30 -day notice period specified in
Sections 1.02, Emergicon shall be entitled to receive compensation for all Accounts (as defined
ErAERGICON SERVICE AGREEMENT Page 1
in Section 2.01) billed and/or collected with respect to the Services and for all other activities
performed pursuant to this Agreement, and shall be entitled, after the end of the termination
period to receive compensation for all amounts billed during the termination period but not
collected until after the end of the termination period.
1.04 Obligations on Termination. Upon termination of the Agreement, for whatever
cause, Emergicon will immediately return all original medical records to Provider and may; at
Emergicon's sole discretion, -provide to Provider a digital copy on a CD -ROM of all paper
records related to Provider.
1.05 Mailing of Notices. Any notice required or permitted pursuant to this Agreement
shall be in writing and shall be deemed sufficient when delivered personally or sent by telegram
or fax or forty-right (48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed as follows:
(a) If to the Provider:
City of Beaumont
P O Box 3827
Beaumont, TX 77704 -3827
Attention: Todd Simoneaux
Fax: (409) 880 -3132
(b) If to Emergicon:
Emergicon, LLC
PO Box 180446
Dallas, Texas 75218
Attention: Christopher Turner
Fax: (214) 328 -0749
Each party shall be entitled to specify a different address by giving five days written
notice to the other party. All such notices and communications shall be deemed to be received
the same day if by fax (provided the sender has a fax machine /fax database generated proof of
receipt) and in three (3) business days if by snail.
AKrzcLE Two
Bn LV. G & COLLECTIONS
2.01 Billing. During the Term, Emergicon shall be responsible for the billing of
charges and fees relating to the Services as directed by and provided by Provider (those fees
billed by Emergicon will be received directly by the Provider), including, but not limited to,
private insurance, Medicare, Medicaid, and other governmental programs relating to:
(a) patient encounters that occur during the Term; and
EMERGICON SERVICE AGREEMENT Page 2
(b) other patient encounters forwarded to Emergicon for billing.
(Note: each set of such charges and fees for the Services related to an individual patient
encounter may be referred to herein as an "Account" or, collectively, the "Accounts ").
2.02 Compensation. In consideration for Emergicon providing the Provider with the
agreed upon billing services described in this Article Two, the Provider will pay Emergicon
eighteen percent (18 %) of the total amount collected on the Account if the Account is older than
one hundred eighty (180) days from the date of service. If the Account is less than one hundred
eighty (180) days from the date of service the Provider will pay Emergicon six percent (6 %) of
the total amount collected on the Account All fees shall be payable monthly within fifteen (15)
days of receipt of invoice.
2.03 Copies of Records. From time to time, Emergicon may receive requests from
patients or the representatives of patients for copies of treatment records. Emergicon will
forward all requests for medical records to Provider. The Provider shall be responsible for
responding to all such requests.
2.04 Records of Patient Encounters.
(a) Provider shall use its reasonable best efforts to forward all requested medical
records of each patient encounter to Emergicon within ten (10) days of such patient encounter.
Such records shall be deemed to be the property of Provider, but Emergicon shall have the right
to duplicate and retain paper or electronic copies of the records. If the records exist only in
electronic form, each electronic copy shall be deemed to be an original for the purposes of this
Agreement. Provider shall have no obligation to forward original medical records during the 30-
day notice period regarding termination as set forth in Paragraph 1.02.
(b) Provider acknowledges that Emergicon has no responsibility for complying with
all provisions of Title 42 C.F.K. Section 410.40 which states, in part, that an ambulance service .
bears the responsibility for obtaining Physician Certification Statements ( "PCS's "). Provider
further understands and concurs that Emergicon is neither an ambulance service nor an
ambulance provider within the definitions as set forth by the Centers for Medicare and Medicaid
Services.
2.05 Requests for Cones. Requests for copies of medical records should be submitted
directly to the Provider and they may authorize release of the records such that the release is in
accordance with the standards and time requirements established by State and Federal law,
including but not limited to the requirements of Section 773.091 Texas Health and Safety Code.
2.06 Activity Reports. Emergicon shall provide to Provider a monthly report of all
billing activities that occurred during the preceding month.
2.07 Information Received by Provider_ To the extent that Provider receives payments
or original copies of documentation directly, Provider shall forward to Emergicon copies of
En9ERGICON SERVICE AGREEMEW Page 3
checks, Explanations of Benefits and/or other documentation within five (5) days of the date of
receipt of payment by Provider.
2.08 Support Services_ Emergicon will provide patients and personnel of Provider
with telephone support services during normal business hours (Monday - Friday from 9:00 a.m.
to 5:00 p-m.) except on public holidays or other holidays as established by Emergicon.
2.09 Obligation for Patent. Payment in accordance with this Article Two shall be
due and outing to Emergicon by Provider for all Accounts collected during the Term and
collected after the Term but billed during the Term by Emergicon regardless of whether payment
was made to Emergicon or to Provider. Emergicon and Provider agree that the purpose of this
Section 2.09 is to guarantee that Emergicon is the only provider engaging ui billing services on
behalf of Provider. Emergicon acknowledges that the Provider has an existing contract for
Accounts that are considered delinquent or in a "collections service" status and will not bill for
those Accounts; no payment shall be made to Emergicon for accounts that are collected under
the City's contract for collection services.
ARTICLE THREE
INDEMNIFICATION AND FmELITY Bo7r'D
3.01 Emer0con's Indenmification. Emergicon shall indemnify and bold harmless
Provider from and against claims, damages, losses and expenses, including but not limited to
attorneys' fees, arising out of or resulting from Emergicon's performance of activities pursuant
to this Agreement, but only to the extent caused by the willful misconduct or the negligent acts
or omissions of Emergicon. The indemnification provided for herein shall not be applicable to
any claim of adjustment or request for reimbursement made by an insurance company or any
servicing agency for Medicare or Medicaid that may be made as the result of an audit of claims
made or governmental regulations or laws, including Emergicon's fees charged, except for any
adjustments or claims for reimbursement made as a direct result of Emergicon -s error.
3.02 Fidelity Bond. Emergicon shall keep and maintain during the term of this
Agreement a fidelity bond with a. qualified insurer ofno less than $10,000.00.
3.03 Insurance: Emergicon shall keep and maintain during the term of this Agreement
ESTOIS & Omissions Liability insurance with a qualified insurer ofno less than S 1,000,000.00.
ARTICLE FouR
CONFOENTIALITY
4.01 Property of Emergicon. Provider agrees that Emergicon's equipment, computer
hardware and software, billing and collection processing, and other related systems and
equipment are the property and trade secrets of Emergicon, and that Provider will not release any
information regarding such trade secrets to any third party without the prior written consent of
Emergicon. Notwithstanding the above, Emergicon acknowledges that the City is subject to
certain laws including the Texas Public Information Act, that govern the disclosure of
information maintained by the City. The City agrees to work with Emergicon in protecting trade
secret information.
EMERGICON $ERVICEAGREEMENT Page 4
4.02 Fact of Contractual Relationship May Be Disclosed. Notwithstanding the
foregoing, either party may, without the prior written consent of the other parry, disclose the
existence of a contractual relationship between the parties.
ARTICLE F VE
AUDITS
5.01 Accurate Books and Records. During the Term and for a period of three (3) years
thereafter, each party agrees to maintain accurate books and records associated with the billing
and collections made the subject of this Agreement.
5.02 Right to Audit. Upon reasonable written notice, either party may audit the books
and records of the other party insofar and only insofar as such books'and records relate or pertain
directly to this Agreement. Such audit shall be conducted at the office of the party being audited,
shall be during normal business hours, and shall be at the sole cost and expense of the party
conducting the audit.
5.03 Penalty for Underpayment. If an audit reveals that a party has failed to pay any
amount or portion of any amount due or payable under this Agreement and such amount is in
excess of Twenty Thousand Dollars ($20,000.00), the party being audited shall pay to the
auditing party the full cost of the audit and the full amount due or payable plus interest at the rate
of ten percent (10 %) per annum from the date(s) of non - payment.
ARTICLE SIX
PROTECTED HEALTH INFORMATION.
6.01 HIPAA Compliance. Emergieort shall carry out obligations under this Agreement
in compliance with the privacy regulations pursuant to Public Law 104 -191 of August 21, 1996,
known as the Health Insurance Portability and Accountability Act of 1996, Subtitle F —
Administrative Simplification, Sections 261, et seq:, as amended ( "HIP'AA" ), to protect the
privacy of any personally identifiable protected health information ( "PHI ") that Is collected,
processed or learned as a result of the services provided pursuant to this Agreement. In
conformity therewith, Emergicon agrees that it shall:
a) Not use or further disclose PHI except as permitted under this Agreement
or required by law;
b) Use appropriate safeguards to prevent use or disclosure of PHI except as
permitted by this Agreement.
C) Mitigate, to the extent practicable, any harmful effect that is known to
Emergicon of a use or disclosure of PHI by Emergicon in violation of ibis Agreement;
d) Report to Provider any use or disclosure of PHI not provided for by this
Agreement of which Emergicon becomes aware;
E«1ERGICON SERVICE AGREEMENT Page 5
e) Ensure that agents or subcontractors to whom Emergicon provides PHI, or
who have access to PHI, agree to the same restrictions and conditions that apply to Emergicon
with respect to such PHI;
f) Make PHI available to Provider and to the individual who has a right of
access as required under HIPAA within ten (10) days of the request by Provider on behalf of the
individual;
g) Incorporate any amendments to PHI when notified to do so by Provider; _
h) Provide an accounting of all uses or disclosures of PHI made by
Emergicon as required under the HIPAA privacy rule within sixty (60) days; and
i) Make its internal practices, books and records relating to the use and
disclosure of PHI available to the Secretary- of the Department of Health and Human Services for
purposes of determining Emergicon's and Provider's compliance with HIPAA.
6.02 HIPAA Disclosures. The specific uses and disclosures of PHI that may be made
by Emergicon on behalf of Provider include:
a) The preparation of invoices to patients, carriers, insurers and others
responsible for payment or reimbursement of the services provided by Provider to its patients;
b) Preparation of reminder notices and documents pertaining to collections of
overdue Accounts;
C) The submission of supporting documentation to carriers, insurers and
other payers to substantiate the health care services provided by Provider to its patients or to
appeal denials of payments for same;
d) The preparation and release of medical records to patients or their legal
representatives as permitted by HIPPA privacy rule;
associate; and
C) Uses required for the proper management of Emergicon as a business
f) Other uses or disclosures of PHI as permitted by HIPAA privacy rule. .
6.03 Red Flab Rule Compliance. Emergicon shall carry out obligations under this
Agreement in compliance with the Fair and Accurate Credit Transactions (PACT) of 2003 to
protect and prevent against identity theft per the Red Flag Rules. Emergicon acknowledges it has
an Identity Theft Prevention Program in place to protect the privacy of any personally
identifiable credit information and to identify pattems, practices, and specific forms of activity
that indicate the possible existence of identity theft.
EMERGICON SERVICE AGREEMENT Page 6
ARTICLE SEVEN
MISCELLANEOUS
7.01 No Waiver. The failure of either party to insist upon strict performance of any
provision of &is Agreement shall not be construed as a waiver of any subsequent breach of the
same or similar nature.
7.02 Provisions Constnred Separately. The parties agree that each provision of this
Agreement shall be construed as separable and divisible from every other provision and that the
enforceability of any one provision shall not limit the enforceability, in whole or in part, of any
other provision hereof. In the event that a court of competent jurisdiction determines that any
term or provision herein shall be invalid or unenforceable, the remaining terms and provisions of
this Agreement shall not be affected thereby, and shall be interpreted as if the invalid term or
provision were not a part hereof.'
7.03 Final Agreement. This Agreement sets forth the entire, final and complete
understanding between the parties hereto relevant to the subject matter of this Agreement. No
waiver or modification of any of the terms or conditions of this Agreement shall be effective
unless in writing and signed on behalf of both parties.
7.04 Performance of Agreement, Venue; Choice of Law. Provider understands and
agrees that Emergicon will be performing this contract in Denton County, Texas. The venue for
any disputes or causes of action that may arise out of this Agreement is the state and coturty
courts located in Denton County, Texas. The provisions of this Agreement shall be determined
in accordance with the laws of the State of Texas excluding the choice of law provisions thereof..
7.05 Headings. The headings of this Agreement are for ease of reference only and are
not intended to Limit or restrict the terms hereof.
7.06 Binding Nature of Agreement. This Agreement is binding upon the heirs, legal
representatives, successors and assigns of the parties hereto.
7.07 Compliance with Laws Generally. Emergicon shall comply with all applicable
laws, orders, rules, or regulations of all governmental agencies bearing on its performance
hereunder. If so requested by Provider, Emergicon shall submit appropriate evidence of such
compliance.
7.08 Independent Contractor. It is understood and agreed that Emergicon is an
independent contractor. Nothing herein contained shall be construed to create any partnership,
joint venture, or joint enterprise between the parties.
7.09 ti_ lon- Profit Status Determination Letter. If Provider is a not -for -profit entity,
Provider shall provide a duplicate of its letter determining its not -for -profit status with the
Internal Revenue Service. In providing such letter, Provider further represents and warrants to
Emergicon that it has done every act necessary to maintain its not -for -profit status with the
Internal Revenue Service and is not aware of any pending, threatened or actual revocation of its
not- for -profit status.
EMERGICON SERVICE AGREEMENT Page 7
7.10 _Appendices. Emergicon and Provider may enter into various appendices to this
Agreement from time to time and at any time regarding additional services. Such appendices
shall be considered part of this Agreement as if set forth herein at length unless such appendix
provides othemise.
7:11 Assi men-. Neither party shall assign or otherwise transfer this Agreement, any
interest in this Agreement, or any right or obligation hereunder to any other party without the
written consent of the other party.
7.12 Attorneys' pees. Should it become necessary for Emergicon to employ an
attorney to enforce -any of the terms and conditions hereof, including the collection of fees,
Provider agrees to pay all expenses so incurred, including a reasonable attorneys' fee.
[SIGNATURE PAGE FOLLOWS]
EMERGICON SERVICE AGREEMENT Page 8
IN V�I12�ESS. WHEREOF, Emergicon and the Provider have executed this Agreement
on the 27th day of April, 2010, and shall be EFFECTIVE as of the Z-7 +_4 day of t
2010.
EMERGICON, L.L.C.
By:
Nance: Christopher Turner
Title: President & CEO
City of Beaumont
By.
Kyle Hayes, City Manager
5i3488
09:3/00002
EMERGICON SERVICE AGREEMENT Page 9